Child Support Guidelines

Many parents want to believe their children are “gifted,” but do they know that this “giftedness” may increase their child support obligations?

Judge Jones’ new published (precedential) opinion, P.S. v. J.S. highlighted the distinction between a regular old “extra-curricular activity” and the pursuits of a “gifted” child, reaffirming that, where a child is “gifted,” the Court may deviate from the Child Support Guidelines to award supplementary child support in order to foster that child’s talents and providing some guidance on how the Court might assess whether a child is “gifted” in a particular area.

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In many cases, the issue of extra-curricular activities is a big one.  Parents want their children to be able to enjoy sports, dance classes, acting lessons, singing lessons, and so on and so forth.  Most parents agree that such activities are important for a child’s enrichment and development.  However, there is often a question over whether the child support payor should contribute to these activities over and above his or her basic child support payment.

In P.S. v. J.S., the parties acknowledged that their daughter loved to act and that they wanted to support her theatrical endeavors.  The only question was whether the non-custodial parent’s child support payment already covered the cost of the daughter’s acting activity, or whether there should be an additional contribution over and above the child support payment.

In his opinion, Judge Jones began by recognizing that the Child Support Guidelines do, in fact, contemplate that the guidelines-based child support award will cover “entertainment expenses,” defined by law to include:

…fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Thus, “extra-curricular” activities are technically covered by a child support award calculated under the Child Support Guidelines.

But just when you think Judge Jones is going to “zig,” he “zags.”  Judge Jones went on to note that Comment 9(d) of the Child Support Guidelines

…expressly provides that the Court may in fact add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.  Under the guidelines, if a court deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of a the child’s giftedness in a specific area.

The Court further held that the supplemental funds awarded to advance a gifted child’s development  “must be economically reasonable, with significant deference to each parent’s financial situation and actual ability to pay.”  In other words, there must be limits commensurate with the parents’ financial abilities.

The question, then, became whether the child at the center of the case was merely interested in acting as an extra-curricular activity, or whether she is a “gifted” actress.  Judge Jones opined that a child’s giftedness will generally relate “to a child’s aptitude , abilities and/or achievements” in one of four areas:  Academics, Athletics, Technology, or The Arts (though he did not foreclose other areas of “giftedness” outside these general categories).  In the particular case before Judge Jones, he found that the child in question was in fact “gifted” at acting.  As a basis for this ruling, he seemed to primarily rely upon two (2) interviews he had with the child approximately two years apart, and his observation that her dedication to and enthusiasm for acting had only seemed to grow in that time.  His decision did not, however, rest upon any sort of evaluation of her acting skills, as he acknowledged in his opinion that he had not observed her perform.  The decision suggests that a determination of a child’s giftedness may not rest upon his or her actual skill level alone.  In my opinion, the criteria for determining whether a given child is gifted will be tested and refined by further cases addressing this distinction between an extra-curricular activity and a gifted child’s pursuit.  Stay tuned…


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Many divorce or support proceedings involve the issue of who is going to pay for extracurricular activities.  Who is paying for sports?  Band?  Social clubs?  Art?  Drama and more?

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While settlement agreements commonly have a separate payment allocation for such expenses from the basic child support obligation – commonly in proportion to the parties’ respective incomes, the New Jersey Child Support Guidelines actually include predictable and recurring activities and lessons the category of “entertainment” in the basic child support obligation.

Entertainment” includes:  Fees, memberships and admissions to sports, recreational, or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Expenses that are not “predictable and recurring” should not be included in the basic obligation but, rather, should be shared by the parents in proportion to their respective incomes.  As can be read from the definition of “Entertainment”, it would seem that most extracurricular activities would fall into the realm of predictable and recurring.  Since application of the Child Support Guidelines is presumed, a court must explain why any deviation therefrom is appropriate.

In Elrom v. Elrom, a newly published (precedential) decision from the Appellate Division, the appellate court found that the trial court failed to explain why it deviated from the Guidelines by adding extracurricular activity costs as supplemental support.  There was no indication by the trial court – in requiring the parties to equally divide the payment for extracurricular activities beyond the basic support obligation – as to why such activities were to be separately paid for from the basic support obligation.  Put another way, there was no indication by the court as to why the activities at issue were somehow deemed other than predictable and recurring.  As a result, the Appellate Division ordered a limited remand to the trial court.

Thus, whether you are negotiating or litigating the issue of extracurricular activity payments, be sure to consider whether such activities are predictable and recurring and, thus, should be included in the basic support obligation, or whether such payments should be made separately therefrom.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*photo by Bojans Cho Joo Young courtesy of freedigitalphotos.net

Child support in New Jersey for parties with combined net (after tax) income of less than $187,200 per year ($3,600 per week), are supposed to be determined based upon the Child Support Guidelines.  The Guidelines are based upon economic data of what it costs to raise a child.

indexThat economic data has been reviewed and, as a result, there are proposed changes to the child support guidelines that may actually see the figures going down, especially for multiple children. The Supreme Court has published the proposed changes on the Court’s website.

As noted in the New Jersey Law Journal, the state Supreme Court’s Family Practice Committee is recommending rule revisions that would allow child-support determinations to be based on a broader and more accurate picture of family spending. Specifically, the committee urges adoption of a new award schedule that “for the first time captures spending in families over a twelve year period,” from 2000 through 2011, which “encompasses prosperous years, recession years and the current slow recovery years.”

For sake of reference, at the highest level, the weekly amount of child support to be apportioned between both parents based upon their percentage shares of net income is follows:

 

No. of Children            1          2          3              4          5          6         

Current                         $453    $606    $658    $733    $806    $877

Proposed                     $571    $589    $731    $803    $884    $973

Continue Reading Will New Jersey Child Support Awards Be Going Down?

I recently read a quote from Joseph Addison, an eighteenth century British author, which said, “Husband a lie, and trump it up in some extraordinary emergency.” It lead me to consider how family law attorneys categorize the notion of an emergency, often with a mixture of histrionics and hysteria, in contrast with how the rest of the world does.

In the world of family law, emergencies are governed almost exclusively by the filing of the well-conceived and ill-named Order to Show Cause. R. 4:52-1 of the New Jersey Court Rules governs the filing of an Order to Show Cause in most scenarios in Family Court, when we are seeking temporary restraints or injunctive relief. It addresses the standard for filing an emergent application, which we all know by heart by now is, that immediate and irreparable damage will probably result to a party or the parties’ child(ren), unless an Order is entered immediately.

As a former law clerk and current family law practitioner, I have a unique perspective on both the utilization and exploitation of the Order to Show Cause.  What was designed to ideally be filed judiciously and to address genuine emergencies is habitually used as a litigation tool to get our clients the instant gratification that they far too often seek. Fittingly enough, these applications filed to presumably accelerate a divorce proceeding often become the ultimate double-edged sword.
Continue Reading A Day That Will Live In Exigency: The (Over) Use Of the Order to Show Cause

              As commented by Eric S. Solotoff is his recent blog post, The New Year’s Resolution Divorce, many people vow not to live another unhappy year with their spouse and begin taking steps towards educating themselves in the divorce process in January. Many people contemplating divorce have children and one of their biggest worries is how their children will be financially supported if they were to physically separate or divorce. As such, I will be blogging each week on a different aspect of child support in New Jersey.   

              In New Jersey, the calculation of child support is governed by the “Child Support Guidelines”, which can be found in Appendix IX-A of the New Jersey Rules of Court. These guidelines were developed to provide the Court with economic information from the parents to assist in the establishment and modification of fair and adequate child support awards. The guidelines attempt to simulate the percentage of parental net income that is spent on children in intact families. The underlying philosophy behind the creation of the New Jersey Child Support Guidelines is as follows:

 

(1) child support is a continuous duty of both parents;

(2) children are entitled to share in the current income of both parents; and

(3) children should not be the economic victims of divorce or out-of-wedlock birth.

 

By its very name, “Guidelines”, it would appear that the use of them to determine child support is optional. However it is rare that the Child Support Guidelines are not utilized when establishing or modifying child support awards. In accordance with Rule 5:6A, these guidelines must be used as a rebuttable presumption to establish and modify all child support orders. A rebuttable presumption means that an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case. The guidelines-based award may be disregarded or adjusted if a party shows, and the court finds, that such action is appropriate due to conflict with one of the factors set forth in Appendix IX-A or an injustice would result due to the application of the guidelines in a specific case. The determination of whether good cause exists to disregard or adjust a guidelines-based award is within the sole discretion of the court.

 

Therefore, absent good cause, the guidelines must be applied in all actions, contested and uncontested (even if you and your spouse agree), in which child support is being determined including:

 

(1) pendente lite child support (temporary child support award established during the pendency of the divorce);

(2) divorce (child support award paid after the parties are divorced);

(3) non-dissolution matters (cases in which parents share a child but are either not married or are separated without having initiated a cause of action for divorce);

(4) interstate child support awards (Uniform Interstate Family Support Act (UIFSA));

(5) domestic violence proceedings;

(6) foster care; and

(7) public assistance cases (Temporary Assistance to Needy Families or TANF).

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Lauren E. Koster is an associate in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office and can be reached at (609) 844-3027 or lkoster@foxrothschild.com.

As many parents get ready to send their children off to college, those who are collecting child support from a non custodial parent wonder how their child support may be affected. The New Jersey Child Support Guidelines are applicable when computing child support for children who are less than 18 or more than 18 and attending high school and living at home. What, then, happens to child support when a child leaves for college? The guidelines specifically state that they should not be used to determine parental contributions for college or other post secondary education. As an exception, they may be applied when a child is living at home and commuting to college. Over the years, courts have taken an inconsistent view as to how child support should be calculated for children living away at school. In the recent, published ( precedential) case of Jacoby v. Jacoby, the NJ Appellate Division addressed this issue.

In the Jacoby case, the parties who were divorced had two children. When the oldest matriculated at college, the non-custodial father moved to reduce his child support obligation to Ms. Jacoby since the child no longer resided in his mother’s house. The trial judge granted his application, and reduced the child support by employing a formula in which the judge calculated child support for two children, and then one child. The judge then took the difference of these two sums and determined 38% of the difference and 25% of the calculated remainder   These two sums were then added and set as support.   Essentially, what the trial court did was to recognize that child support is comprised of three broad categories: fixed costs – those costs that are incurred even when child is not residing at home. An example is housing related expenses; variable costs – those costs which are incurred only when the child is with the parent ( food is an example); and controlled Costs – costs which are incurred by the primary caretaker of the child, such as clothing and entertainment. The court then presumed there was a lower amount of variable and controlled costs when the child was away at college and reduced support accordingly. 

 

When the second child matriculated, Mr. Jacoby again sought a reduction. A different judge heard the application and denied Mr. Jacoby’s request. He then appealed. 

Continue Reading A New case on Child Support for a College Student

Beware the tax calculations in the child support guidelines’ automatic calculator.  You  be getting  less support that you should be.  At a time when the NJ Child Support guidelines are notoriously low, it is important to make sure that an obligor’s  net income is appropriately calculated in order to asses whether the correct amount of child support is being paid.  Child support is calculated based on the net income of the parents.  Net income for support purposes is calculated by taking gross income, deducting taxes, mandatory retirement contributions ( such as a state pension deductions), union dues, and other allowable deductions listed in the Guidelines.  The more the net income, the more the support award.   The issue of taxes must be carefully looked at, particularly in this age of automatic calculators.

The child support guidelines that are on various computer programs including the state’s judiciary web site, and ones used by attorneys regularly, have automatic tax calculators.  In other words, if you know that your spouse makes $150,000 per year, you can plug that in and the computer will spit out a "net" number after hypothetical taxes are paid out. Similarly, if you look at the guidelines in the appendix to the current court rules, there is a table that similarly calculates an amount to deduct for taxes.

The problem, however, is that these calculations consist of an estimated tax amount based upon the tax bracket of the payor, rather the actual tax rate.  There’s a difference, and in some cases, it can be significant.  A tax bracket is the percentage of income that is taxed ate the top rate.  We live in a country that has a progressive tax, an so higher income levels are taxes at higher rates.  However, when you hear someone say that that are in the 35% tax bracket, that does not mean they necessarily pay 35% in taxes for all of their income.  In fact, most individuals, when you review a tax return with all of their deductions, actually pay a far lower amount of taxes as a percentage of their income.  So in other words, even if you think someone is in a 25% tax bracket, there is a good possibility that the actual percentage of their income that noes to taxes is something closer to 11% depending on how they file (married, single,head of household), the deductions that they can take, and the dependents that they claim.  

The result of all this is that when you simply look to the calculators in these programs, you may be shorting yourself when it comes to support. This is not to say, however, that the calculators do not play an important role in calculating support.  There are times when you know that the obligor may not have significant deductions and in fact the amount may be spot on.  In other times, you may not have the information and a judge needs to make a "best guess."  However, when the information can be available, it is always preferable to a review tax returns.  

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Jennifer Weisberg Millner is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild’s Family Law Practice Group. Jennifer practices throughout New Jersey in all areas of family law and family law litigation and is resident in the firm’s Princeton office. You can reach Jennifer at (609) 895-6712, or jmillner@foxrothschild.com.

When negotiating the payment of child support, I discuss with my clients the implications of paying/receiving support through Probation.  One of the major implications of paying child support through Probation is the anticipation of a Cost of Living Adjustment, or COLA.

Any child support order paid through Probation that was issued after September 1, 1998 is subject to a COLA increase every two years.  At around the two year mark, Probation provides both parties with a notice of the increase.  The increase is based on the “average change in the Consumer Price Index for the Metropolitan statistical areas that encompass New Jersey and shall be compounded.”  Although Probation will calculate the percentage increase for you, you can calculate it yourself to anticipate what’s at stake:

1.  Visit the Bureau of Labor Statistics Website: http://www.bls.gov/cpi/

2.  At the bottom right of the screen, there is a “Regional Resources” tool.  Select your region.  If you live in any part of New Jersey other than Atlantic City, select New York.  If you live in Atlantic City, select Philadelphia.

3.  A table will appear, select the “more formatting” option.  Then select “12 month percent change”.  Specify the 2 year range.  Select “annual data” for time period.  Finally, click on “Retrieve Data.”  For example, the 2009 average change in the Consumer Price Index (CPI) was .4 and in 2010, it was 1.7.  Therefore, the total change was 2.1% for the 2 year period.  Considering this, a $100 per week obligation would be increased to $102.10 per week with the COLA.

After receiving a COLA notice, the party paying child support has 30 days from the date of the notice mailing to contest the increase with Probation.  The increase may only be contested on the following grounds: (1) his/her income has not increased at a percentage at least equal to that rate; OR (2) the child support order already provides for an alternate method of periodic COLA adjustments.  After considering the objection, Probation will make a recommendation and notify the parties of the recommendation.  The party who is dissatisfied with Probation’s determination may request a hearing before a Probation hearing officer (not a judge).  If either party is dissatisfied with the hearing officer’s decision, that party may appeal to the family court judge.  In such circumstances, the family court judge shall consider all evidence presented, regardless of whether the evidence was presented to the hearing officer.

The COLA increase was recently addressed by the Appellate Division in an unpublished opinion, Savini v. Triestman.  In this case, the father contested his 6.85% COLA, which would have increased his child support obligation by $218 per month, or $2,616 per year.  Probation agreed and determined that a COLA was “not warranted.”  The mother requested a hearing, but the hearing officer ruled against her.  The mother appealed to a family court judge, claiming that the father was lying about his income.  The judge claimed she hadn’t satisfied “her burden” of proving this and ruled against her.

The Appellate Division in Savini disagreed, holding that the trial judge improperly held the mother to the father’s burden.   Rather, the judge should have made specific findings as to the father’s income before and during the COLA time-period.  Finally, the judge should have calculated whether any increase in the father’s income was at least 6.85%.

Considering the money at stake, it is important for a party to understand the procedure and be ready to use it if necessary.

In determining a payor spouse’s gross income in analyzing an appropriate level of alimony or child support, one question that arises on occasion is whether to include so-called "mandatory" contributions to the total number.  For instance, if the payor spouse is required by his employer to contribute $30,000 per year towards his 401(k), should such money be included in that spouse’s income in determining support?  As to child support, the answer is a definitive "no." 

As to alimony, since such contributions are excluded from the child support equation and child support carries great weight as a matter of public policy – the New Jersey Child Support Guidelines posit that children should not be forced to live in poverty due to family disruption – it is only sensible and reasonable for such contributions to be similarly be excluded from the alimony calculation.  Simply put, since the Guidelines consider any and all sources of income to aid children, the fact that mandatory contributions are excluded demonstrates that it would be even more unfair and unreasonable to include such contributions in calculating alimony.

The Guidelines provide a definition for "gross income" and, in so doing, expressly exclude mandatory contributions.  Gross income is defined as "all earned and unearned income that is recurring or will increase the income available to the recipient over an extended period of time.  When determining whether an income source should be included in the child support guidelines calculation, the court should consider if it would have been available to pay expenses related to the child if the family would have remained intact or would have formed and how long that source would have been available to pay those expenses."

Continue Reading TO INCLUDE OR EXCLUDE MANDATORY CONTRIBUTIONS IN DETERMINING INCOME – A BASE-LEVEL ANALYSIS

 Are your expenditures for your children “average?” Be careful to make sure that all of your children’s expenses are included in child support. Most parents going through the divorce process are aware that New Jersey has guidelines to assist courts in determining support for children. But many do not know what exactly the guidelines are supposed to cover and whether their particular situation warrants a deviation. 

 Judges are required to calculate the child support guidelines in all cases. In cases where the combined net income of both parents is $187,200 or under, the amount under the guidelines will be applied. In cases in which the combined income is in excess of $187,200 net per year, the court is to use the guideline amount and then supplement that amount, based on a variety of factors. The guideline amount is a rebuttable presumption which means that the amount that is calculated is deemed to be the appropriate amount of child support unless a party can demonstrate that the amount is not. The Guidelines specifically tell us that the awards are based on an average of the percentage of income spent on children by a large number of families in a variety of socioeconomic situations.

Continue Reading Making sure Child Support covers actual Needs