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In a new published (precedential) decision, Ricci v. Ricci, the Appellate Division addressed an adult child’s (an oxymoron, I know) request for her divorced parents to contribute to her college education expenses. Going  back to basics, the Appellate Division reminded us that – before any determination about a divorced parent’s obligation to contribute to college education expenses can be made – a threshold question must be answered, namely: Is the child emancipated?

The Facts

The pertinent facts are as follows:

  • Maura and Michael Ricci divorced when their daughter, Caitlyn, was four (4) years old.  As Caitlyn grew older, she engaged in some less-than-responsible behavior.  This is not in dispute.  Caitlyn graduated from high school in June 2012, at which time it was determined by Caitlyn’s parents that – due to said irresponsible behavior – Caitlyn wasn’t ready to go away to college and live on her own.  Therefore, Maura and Michael agreed that Michael would pay for the summer and fall semesters of community college; Caitlyn attended as a part-time student while continuing to live with her mother.
  • In Winter 2012, Maura and Michael agreed, as a way of testing the waters as to Caitlyn’s readiness to live on her own, that Caitlyn would  participate in the Disney College Program in Florida.  Within a month of starting the program, Caitlyn was expelled for underage alcohol use.
  • This is where the facts get a bit murky.  Maura and Michael say that, after Caitlyn’s expulsion from the Disney College Program, they wanted her to return to community college on a part time basis to complete her associate’s degree and outlined for Caitlyn a program of school, counseling, and work (i.e. a part time job) in order to instill discipline and a sense of responsibility in her.  Caitlyn viewed these expectations as unreasonable and impossible.  What is undisputed is that at this point, Caitlyn moved out of her mother’s home and in with her grandparents.  In Michael and Maura’s views, this move was intended as a rejection of their parenting and their attempts to help Caitlyn.  In Caitlyn’s view, her parents’ unrealistic demands “pushed her beyond the sphere of parental influence.”
  • In March 2013, after Caitlyn moved out, her parents agreed that Caitlyn was emancipated.  They entered into a consent order accordingly.
  • Months later, Caitlyn, still enrolled in community college, filed a motion to intervene in her parents’ divorce matter and sought continued support from her parents; specifically, their contribution to her community college tuition.  In October 2013, the trial court judge granted her application.  Importantly, the judge deemed Caitlyn “un-emancipated [sic] solely for the purpose of a potential contribution from [her parents] as it relates to college costs.”  He ordered that Maura and Mike pay for Caitlyn’s tuition, fees, and costs for the 2013-2014 school year, after application of Caitlyn’s financial aid award.  This amounted to about $2,000, or what the trial judge viewed as a “de minimis” amount.  The judge did not conduct a plenary hearing prior to making its decision that Caitlyn be deemed “un-emancipated” for this specific purpose.  Nor did he conduct a review of the parents’ finances to determine their abilities to pay for Caitlyn’s college expenses.
  • Caitlyn was accepted to Temple University for the Fall 2014 semester.  She applied for financial aid and received it, but had about $18,000 / year in un-met tuition expenses, which she wanted her parents to pay.  Caitlyn filed a motion seeking to enforce the Court’s prior order, arguing that it required her parents to pay her tuition, fees, and book expenses.  Maura and Michael opposed the application, arguing that the October 2013 Order was limited to tuition, fees, and books for the 2013-2014 year and that the Order did not determine their obligations, if any, for college contribution in subsequent years.  In October 2014, the Court granted Caitlyn’s application and “enforced” the prior Order, ordering Maura to cover 40% of the unmet college costs, and Michael to cover the balance.
  • Michael and Maura filed a motion for reconsideration.  They argued that the order was unfounded because Caitlyn had unilaterally moved out of Maura’s home after refusing to even compromise about the plan they had laid out for her to impose discipline; transferred to an expensive out-of-state school without conferring with them; refused to communicate with her parents; and continued to act independently, without regard to their parental input.  In short, they argued, she was emancipated and their obligation to support her ended with her rejection of their parenting.  The Court denied their motion and Mike and Maura appealed from all three (3) trial court orders.

The Legal Framework

Whew, that was a lot of facts!  Now let’s get to the law.  In her opinion, Judge Lihotz walked us through the legal framework to which the Court should adhere in these cases.  First, the Court needs to answer the threshold question of whether the child at issue is emancipated.  Lots more on that below.

Next, if the child is not emancipated, the court must consider whether the child has the aptitude for college.  The seminal Newburgh case does not require deferred emancipation for children reaching the age of majority in every single instance; if a child is unable to perform adequately for his or her academic program, then it may be appropriate to find that the child is emancipated.

Finally, if a child has the aptitude for college, a review of the parents’ finances and determination of their abilities to pay and to afford college must be undertaken so that the Court can determine what a parent may reasonably contribute to a child’s college education expenses.

Highlighting the Threshold Question of Emancipation

In reviewing the trial court decisions below, Judge Lihotz essentially found that the trial judges had put the proverbial cart before the horse by failing to address the threshold question of whether Caitlyn was emancipated or not.

Simply put, the parent-child relationship imbues parents with certain “rights, privileges, duties, and obligations.”  One such duty  is to provide financial support, a form of which is contribution to a child’s college education expenses.    The Court, in exercising its power to protect children, has authority to impose support obligations, but this power is limited and terminates upon a child’s emancipation.

So when is a child emancipated?  Well, Judge Lihotz wrote, this depends upon the nature of the parent-child relationship as much, if not more so, than the age of the child:

The dependent parent-child relationship indicative of unemancipation is not merely shown by a child’s claimed need for financial support.  Our jurisprudence unmistakably mandates there must be examination of the parent-child relationship itself.  In fact, a better description is the relationship is one of interdependence: the child’s right to support and the parents’ obligation to provide payment are inextricably linked to the child’s acceptance and the parents’ measured exercise of guidance and influence.  Conversely, a finding of emancipation is a recognition of a child’s independence from a parental influence. (internal citations omitted).

In this case, Judge Lihotz observed, the two sides of the story could lead to different results.  Caitlyn’s version of the facts was, essentially, that she couldn’t possibly have accepted her parents’ guidance and influence because they were imposing unreasonable, unbearable restrictions and demands upon her; they had forced her outside of their sphere of influence involuntarily, and why should she be penalized for that?  Maura and Michael’s version of the facts, on the other hand, was that they were parenting Caitlyn; she needed their strict guidance due to her wild and irresponsible behavior, but she had outright rejected it and chosen to live independently of them and their influence.  Given the diametrically opposed accounts of what had happened, Judge Lihotz observed, a plenary hearing and a fact-finding should have taken place in order to make a determination as to whether Caitlyn’s version of events rang true such that she should be deemed unemancipated, or whether it was appropriate for her to remain emancipated because her parents’ version of the story was more accurate.

One thing seems to be certain: it was improper for the judge to deem Caitlyn un-emancipated for the limited purpose of assessing college expenses to her parents.  As Heidi Klum might say, you’re either “in” or you’re “out.”

 

Either you are emancipated and not entitled to support from your parents – including payment for college expenses – or you’re not emancipated, and you are entitled to support.

Let’s Try This Again…

Ultimately, Judge Lihotz ordered a remand (legalese for a “do-over”) to the trial court.  First, the trial judge must hold a plenary hearing to determine whether Caitlyn was emancipated after all.  The judge will have to review the record and make an assessment as to whether Caitlyn voluntarily set out on her own path and rejected her parents’ guidance and influence.  If not, and she was not emancipated, then the Court will have to address the secondary questions of whether Caitlyn had the aptitude for her academic program (which, now that Caitlyn is 23 and may or may not have graduated from college by now, should be self-evident), and will have to review the parties’ finances to determine their fair shares of financial responsibility.  But it all boils down to that first question:  was Caitlyn emancipated when she made her initial application?

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 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.

Signed into law on January 19, 2016, New Jersey’s emancipation law is set to take effect on February 1, 2017 and will apply to all child support orders issued prior to or after its effective date.

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One of the highlights of the new law is that it will dramatically impact when and how child support orders will terminate. Specifically, it provides that unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support will also terminate automatically when a child reaches 19 years of age unless (a) another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age; (b) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or (c) the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

Just ahead of the effective date of the statute, Judge Jones issued an opinion on the effect of one child’s emancipation in Harrington v. Harrington. In Harrington, the parties divorced in 2012. The parties have three children, all of whom were unemancipated at the time of the divorce. As such, the parties’ settlement agreement provided that the father would pay the mother the sum of $240 per week in child support for all three children. In what would become a decisive fact in the case for Judge Jones, he noted that the child support was unallocated, rather than broken down or allocated into specific dollar amounts for each child – either on a one-third per child basis or otherwise.

Following the divorce, the father paid child support as agreed without requesting an modifications, even when their oldest child began college. In September, 2014 the parties mutually agreed to emancipate their two oldest children. Two orders were entered confirming the emancipation, but the amount of child support that the father paid remained the same. Further, neither party submitted or exchanged updated financial information or filed any motion.
In June, 2015, the last remaining unemancipated child graduated high school and decided not to proceed to college. The father continued to pay $240 per week in child support nonetheless, without any objection by either party.

In February, 2016, a year-and-a-half after the first two children were emancipated, the father filed a motion for the retroactive allocation of child support to $80 per child, and downward modification of one-third per emancipated child, effective September, 2104. He also sought to emancipate the youngest child and terminate his obligation. The mother consented to the emancipation of the youngest child, but opposed the retroactive modification that the father sought.
With regard to the issue of retroactive emancipation, the Court initially grappled with which law to apply in this situation: should it apply the anti-retroactivity statute which prohibits the retroactive modification of unallocated child support, or does the case law with regard to retroactive emancipation apply?

In reaching its decision, the Court devised a set of equitable factors that should be examined:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

In applying the above factors to the present case, the Court considered the following factors: nearly a year and a half passed between the effective date of the emancipation for the older two children and the filing of the father’s motion; there was no reason provided to explain the delay in filing; during that period, the father continued to pay the same level of child support to the mother; there was no evidence submitted that the mother or the children engaged in any type of fraud; the mother and children communicated facts that would have led to a modification of support; and, a retroactive modification of support to 2014 may be unduly complicated given the fact that no financial information was submitted for the period of time in question – 2014-2016.

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
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Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

The Appellate Division’s newly published (precedential) decision in Avelino-Catabran v. Catabran provides another lesson to practitioners and litigants about the language used in settlement agreements and how such language, if unambiguous and without basis to modify, will likely be upheld in matrimonial matters.  The specific dispute involved college payments for the parties’ older child and child support, but the importance of this decision stems from the enforceable nature of the settlement agreement itself rather than what portion of the agreement was at issue.

Contract pic

Here are the relevant facts that you need to know:

  • The parties were married on June 18, 1993 and divorced on August 14, 2002.  A settlement agreement addressing custody and support of the children – 21 and 17 at the time of the appeal – were addressed therein.
  • The agreement provided that the parties shared joint legal and physical custody of the kids, with mom being designated as the parent of primary residence during the school year and dad during the summer.
  • The agreement also required dad to pay $137 per week in child support, and the parties seemingly agreed to increase the obligation to $800 per month in 2009.
  • As to college, the agreement provided that the parties would be equally responsible for “net college expenses – those remaining after the children applied for financial assistance.”  The agreement provided:

  • The minor children shall have an obligation to apply for any and all scholarships, student loans, grants and financial aid that may be available to help defray the cost of each child’s attendance at college.  After deductions for scholarships, student loans, grants and financial aid, the parties agree to be responsible for the net college educational costs of the minor children.  Net college cost[s] will be split equally by the parties.  (language was deleted providing that the parties respective obligations were to be determined pursuant to their respective abilities to pay at that time).

  • In June 2004, the parties agreed to change the custody and parenting time arrangement, eliminating alternating weekends with the kids living full-time with mom during the school year and with dad during the summer.
  • In May 2011, the custody and parenting time arrangement was again changed when mom and her new husband moved to Switzerland with the kids.  To facilitate the move, dad signed a letter at the time providing that mom had sole custody of the kids “[f]or the duration of, and subject to, their residing in Switzerland.”
  • After graduating from high school, the oldest child decided to attend NYU starting in Fall 2012.  Total cost of attendance was approximately $62,000, but the school offered substantial financial aid (including a large scholarship, a work study offer, and student loans), the total value of which came to approximately $23,000.  The package also included PLUS loans worth approximately $39,000, which were defined by the award letter as “the maximum amount . . . . [a] parent may borrow.”
  • The child accepted the full scholarship, work study, and student loans offered to her.  In an email sent at that time, dad asked mom, “how much Parent PLUS Loan should we borrow?” and suggested they borrow approximately $13,000 to cover mom’s share of the balance owed for college.  Mom responded by telling dad to “Please borrow this money on behalf of Catherine (the older child)”.  As a result, dad accepted the available PLUS loan.
  • In October, 2012, dad filed a motion seeking to modify child support to reflect a split-parenting arrangement, an order requiring mom to pay half of the child’s net college expenses, and judgment against mom for the amounts due on the PLUS loan and owed to NYU for the Spring 2013 semester.
  • Mom argued that no funds were owed by her for college costs because NYU provided the child enough financial aid to cover the total expense.  Financial documents submitted showed that mom’s gross income was approximately $225,000 annually and dad’s was $113,000 (they each earned $73,000 at the time of the divorce).
  • In May, 2013, the court entered an order directing mom to contribute to college expenses, but required the parties to submit their financial documents to determine what said contribution should be.  It also directed the parties to submit pay stubs and tax returns to determine child support moving forward.  In so doing, the court found that the financial aid package did not cover the full college cost, the PLUS loans were available only to mom and dad, and dad had established changed circumstances warranting a child support modification.
  • Notably, the court found that, based on the above-described emails, mom was aware of the financial aid package and that the loans dad was taking were to cover her share of the college costs.  NYU was also deemed an appropriate college choice by the child because of the “employment opportunities offered to NYU graduates” instead of another school preferred by mom.
  • Mom moved for reconsideration of the trial court’s order.  The motions were denied in January 2014.
  • During the next series of months, the parties submitted various financial disclosures to the court.  Mom claimed she could not afford to pay for college, and she had filed for Chapter 11 relief in bankruptcy court approximately six months prior.
  • In May 2014, the court ordered mom to contribute 50% of the net college expenses.  It also modified child support, directing dad to pay $186 per week for the younger child, and mom to pay $281 per week for the older child (resulting in a net payment of $95 per week to dad).  In so doing, the court found mom had sufficient resources to contribute to college, considering the requisite legal factors (the Newburgh factors) in so doing, and relied on the language of the original settlement agreement calling for an equal payment obligation.
  • As for child support, the court, in that same order, found that the children’s respective living arrangements (older child at college and younger child in Switzerland) merited a modification.  In so doing, the court relied upon the Child Support Guidelines, Rule 5:6A, and dad’s support proposal (not included in the order).  In so doing, the court also attached a Child Support Guidelines Sole Parenting Worksheet for two children in a “split-parenting situation” (for multi-child families where one parent has custody of one or more children, and the other parent has custody of the other children).  Support was modified retroactive to October 2012 when dad first filed his motion.
  • Mom appealed the relevant order.

i.     Decision on College Expenses

In affirming the trial court’s finding as to college, the Appellate Court found that the lower court properly enforced the unambiguously written original settlement agreement requiring mom to be equally responsible for the kids’ college expenses because there was insufficient evidence of unconscionability, fraud, or changed circumstances (despite mom’s bankruptcy filing) that would merit a deviation from the agreement.  The Court reiterated the obligation of divorced parents to contribute to the higher education of children who are qualified students (notably, the court referenced a general parental obligation to pay – not just for divorced parents, which has been a hot topic of discussion in recent years).

  • Notably, because the parties agreed on how to pay for college in the settlement agreement, the trial court was not required to apply all of the Newburgh factors in rendering a determination and was simply required to enforce the agreement/contract as written.
  • As to the PLUS loan, the Appellate Division disagreed with mom’s position that the loan was secured for the child because the child was not eligible to apply for or receive the loan herself.  “Therefore, the PLUS Loans cannot be considered a student loan or financial aid available to [the child] for which she had to apply, as contemplated by the parties.  The court correctly determined that [mom] authorized the loan and she was responsible for same.“

ii.     Decision on Child Support Modification

The Appellate Court affirmed the trial court’s determination (without a hearing) that the older child living at college and spending her time off with dad instead of with mom in Switzerland was a sufficient changed circumstance to merit a support modification.  There was also no dispute that the parties’ incomes had substantially changed since the divorce.  The Appellate Court, however, agreed with mom’s position that the trial court erred in calculating child support by:

  • Failing to consider the statutory child support factors as required by Jacoby v. Jacoby when a child lives away from home while attending college (at which point the Guidelines no longer apply);
  • Failing to properly calculate the support award and issue a clear statement of reasons for same; and
  • Relying on dad’s use of the Guidelines and its incorporation by reference of dad’s proposed calculation.

Primarily, the trial court failed to calculate the Guidelines-based amount and specifically provide why it was deviating from same in the best interests of the child.  “[A] court cannot simply attach a guidelines worksheet in lieu of providing a statement of reasons.”  In so holding, the Appellate Court noted, “The court’s statement regarding its abdication to [dad] of its obligation to calculate support did not satisfy its obligation to provide a statement of reasons for its decision.”

Avelino-Catabran provides a useful analysis for practitioners and litigants when it comes to drafting agreements and, in this particular instance, what will and should be included in the college expense portion of same.  Most of the agreements I have seen and drafted are largely similar on this topic and, by excluding the PLUS loans (which were not identified in the agreement) from the equation, the Court ensured that divorced parents cannot essentially abdicate their responsibility to provide for a child’s college expenses.

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

Connect with Robert: Twitter_64 Linkedin

*image courtesy of freedigitalphotos.net

When we all think of insurance, we often think of medical insurance, car insurance and homeowner’s insurance as these seem to be the necessary and everyday types of insurance. Life insurance, which for some can be synonymous with high premiums, is one of the first costs to go when seeking to reduce your budget. I often find that the issue of life insurance is something that typically does not cross a person’s mind when they are getting divorced, whether they are the supporting spouse or the supported spouse, especially if the parties did not maintain life insurance during the marriage.

life

Often times however, when a supporting party has an ongoing alimony and/or child support obligation, a court may order (or the parties will agree) that a life insurance policy will continue (or be implemented) as a method of financially protecting a dependent party and/or child in the event of the supporting party’s premature death.

In other words, the same reasons an intact family would procure life insurance, remain after the divorce. All too often however, an obligation to maintain life insurance is the forgotten provision of a divorce settlement agreement in that either 1) it is noticeably absent from the agreement, or 2) it is not being maintained. Obviously, either of these scenarios is troublesome for the supported spouse and could ultimately cause substantial financial ruin should a situation that life insurance seeks to protect against come to fruition.

In the recent case of Ashmont v. Ashmont, Judge Lawrence Jones recently released an unpublished (non-precedential) yet persuasive opinion on how to deal with the issue of life insurance between divorced parties. In Ashmont, the parties’ Marital Settlement Agreement required that the wife would receive permanent alimony and child support for the parties’ children. In order to secure same, the parties agreed that the husband would carry life insurance as a means to protect against the loss of financial support in the event of an untimely death.

Several years after the parties were divorced, wife brought an enforcement action against the husband for a breach of their agreement for his failure to provide proof that he was maintaining life insurance as well as for sanctions for his past and alleged ongoing violations of his life insurance obligations. At the time of the hearing, husband admitted that he had been in violation of this obligation, but had recently brought himself into compliance by securing a new policy, consistent with the terms of the parties’ agreement.

Although wife acknowledged that husband was now compliant, she still sought sanctions against the husband for his prior failure to maintain the policy and for allowing his dependents to go uninsured for such a long period of time. It was clear that husband only complied with the obligation after wife was forced to bring litigation and wife feared that husband would simply fail to pay the next scheduled premium.

In his opinion, Judge Jones lays out four tips regarding life insurance and divorce:

• The court may direct that the supported spouse or other parent be named as the owner of the policy, if permitted by the insurance company. This option is particularly relevant when the supporting spouse has a history of failing to adhere to his or her court-ordered life insurance obligations. Being the “owner” of the policy, rather than the “beneficiary” or the “insured”, allows for the party to receive any and all notices and communications from the insurance company regarding the status of the policy, including invoices, notices of proposed cancellation, change in policy terms and renewal dates;

• When a party willfully breaches a court-ordered obligation to carry life insurance, the court may issue multiple forms of relief, including but not limited to ongoing financial sanctions, until such time as the defaulting party complies with the obligation;

• When a party violates a court order, but ultimately complies prior to the conclusion of enforcement litigation, such compliance does not completely erase or negate the violation. Nonetheless, remedial and corrective conduct is equitably relevant on the issue of mitigating sanctions and penalties which might otherwise be imposed under the circumstances. In this case, the wife had asked for a sanction of $7,440.00, the amount of money that husband had saved over the years by failing to comply with his obligation. Finding it a mitigating factor that husband ultimately did cure the defect and that wife was not financially harmed, husband was sanctioned $2,500.00 and was ordered to reimburse wife her $50.00 filing fee for the enforcement motion; and

• As life insurance is an ongoing financial obligation intrinsically related to spousal and/or child support, an insurance provision in a judgment of divorce or settlement agreement is potentially subject to post-judgment modification upon a showing of a substantial change of circumstances, pursuant to Lepis v. Lepis 83 N.J. 139, 145-46 (1980). This situation may occur when a term policy naturally expires and the insurance is either much older or less healthy than at the time of divorce, meaning the cost of the policy could be substantially increased and thus revisited by the Court.

While no one wants to think about the consequences associated with an untimely death, the takeaway from this case is that as the supported spouse/parent, it is imperative that you are “in the know” regarding the insurance policies that could very well dictate your financial security (and your children’s) for the rest of your life. If your ex-spouse has an obligation to secure their support payments with life insurance and you have not seen recently seen a copy of the policy, it might be time to reach out and connect with them to ensure the policy is current.

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LLauren Koster Beaver, Associate, Fox Rothschild LLP
Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Ah, the moment you have been waiting for – nay, dreaming of – has arrived:  your child has gotten his or her driver’s license!  It was a long time coming, after 17 long, hard years of carpooling to school, arguing with the other parents about who is going to pick the kids up from their mall hang-out session, shuttling your child to sports practices, lessons, tutors, and so forth.  Freedom is yours!  There’s just one question:  who’s going to pay for the expenses associated with your son or daughter’s car and insurance expenses?

teenage driver graphic

When it comes to working out a fair child support arrangement, the devil is often in the details.  Child support recipients often feel that the support awarded to them under the Child Support Guidelines – the formula used in this state to calculate appropriate child support awards in most cases – isn’t enough.  After all, kids cost a lot of money.  Plus, their needs are constantly changing.  A child support award entered when the child is 3 years old may not be adequate when that child turns 13.  For parents of teenagers, one life change that often creates a dispute about the adequacy of the child support award occurs when the child begins driving and, at the very least, increases auto insurance costs.

For years, family law attorneys and our clients have grappled with the issue of whether the cost of a child’s car insurance as a new teenage driver was intended to be covered by a Child Support Guidelines-based award or, alternatively, it should be treated as an “add-on” expense to be shared by the parties over and above the child support payment.  And, as Judge Jones points out in his latest thoughtful opinion, Fichter v. Fichter, it has been unclear as to whether the Court may use its discretion to increase the child support contribution in order to address the costs of having a new teenage driver of divorced or unmarried parents.

In 2013, The New Jersey Child Support Guidelines were amended and gave us some answers to these questions.  As amended, child support is to include:

Transportation – All costs involved with owning or leasing an automobile including monthly installments toward principal cost, finance charges (interest), lease payments, gas and motor oil, insurance, maintenance and repairs. Also, included are other costs related to transportation such as public transit, parking fees, license and registration fees, towing, tolls, and automobile service clubs. The net outlay (purchase price minus the trade-in value) for a vehicle purchase is not included. Transportation also does not include expenses associated with a motor vehicle purchased or leased for the intended primary use of a child subject to the support order.

So, the 2013 amendments told us that if a child is going to drive his/her own car, the expenses associated with buying that car, and all other expenses associated with that car – which presumably includes insurance costs – are more appropriately considered “add-ons” to child support and not part of the child support expense.  By contrast, the 2013 amendments tell us that if a child is driving his/her parents’ car, child support will include all costs associated with that car.  And that makes sense:  if no new car is being purchased for the child, the actual expenses incurred by the parent who owns that car are going to remain the same.

Well, except for the auto insurance.  New teenage drivers can increase the cost of auto insurance for an existing car exponentially – they are one of the most expensive classes of drivers to insure due to their inexperience.  To say that an existing child support award covers the cost of adding a newly licensed teenage driver to the auto policy for an existing family car – while the cost of insurance for a new car primarily for that child’s use is NOT included – seriously prejudices those families who can’t afford to, or don’t want to, buy a new car just for their child to use.  Judge Jones’ new decision recognizes that inequity and allows the Court to deviate from the Child Support Guidelines and craft a child support award that takes into account the new expense of adding a teenage driver to an existing auto insurance policy:

The Court finds that, based upon the totality of a family’s economic circumstances, a court may in its discretion find good cause to deviate from the guidelines and require each parent to contribute additional reasonable and affordable monies towards a newly licensed teenage driver’s car insurance.  Good cause may logically include, but not necessarily be limited to, the special nature and importance of car insurance and the need to adequately protect a child as a newly licensed driver.

And that seems fair.  Shouldn’t both parents contribute to the increase of the cost in insurance if they agree they will not purchase a new car intended primarily for their child’s use?  Of course, like most other things in family law, Judge Jones’ decision is fact-sensitive and not a brightline rule.  Although the decision opens the door for a Court to decide to adjust child support to take into account the cost of insuring a newly licensed teenage driver on an existing family vehicle, good cause to do so must still be shown.

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.

On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that impacts upon child support and when/how it terminates.  The new law, which takes effect 180 days after its signing, is applicable to all child support orders issued prior to, or, or after its effective date.  Much of it codifies existing case law, but alters, in part, the prior rebuttable presumption that child support terminates when a child reaches age 18.  The language specifics and nuances will most certainly in a manner similar to the amended alimony law, future litigation over what such language means and how it should be applied.

bill becomes law

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child – who is less than 19 years of age – marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

  1.  another age for such termination is specified in a court order;
  2. the parties consent and the court approves the continuation of support until after a predetermined date; or
  3. child support is extended by the court based on an application filed by a parent or the child prior to reaching age 19.

A parent or child may also seek the continuation of child support beyond 19 years of age under the following circumstances:

  1.  the child is still enrolled in high school or other secondary program;
  2. the child is participating full-time in a post-secondary education program;
  3. the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued child support; or
  4. other exceptional circumstances as may be approved by the court.

Interestingly, if a court orders the continuation of child support, it must also provide in the order “a future date upon which the child support obligation will terminate or a date upon which the court will review the circumstances of the parties and children.”

Matters involving child support obligations supervised by the Probation Division will require Probation (and the State IV-D agency) to provide both parents with at least one notice of proposed termination and instructions on how to seek a continuation of child support.  Such notice is to be provided no less than 90 days prior to the termination of support under the new law.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue until modified by court order.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date subject to the approval of the court.”  Prior language that did not make its way into the final law focused on utilizing “capped” age of 23 to terminate support, which is often found in settlement agreements as a sort of “catch all” provision as to when child support will end.  I have had adversaries argue to me – when, of course, it suits their client’s position – that using the age of 23 as a cap to end child support is unenforceable as against public policy.  The new law confirms, however, that such a cap could be enforceable, and that it – like any other agreed upon language regarding a support termination date – is subject to the court’s approval.   Hopefully that will limit litigation that can occur surrounding such provisions in a settlement agreement.  To that end, practitioners should also consider incorporating references to the new law in the emancipation portions of their settlement agreements.

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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

As a lover of all things Coldplay, I was sad to hear that lead singer Chris Martin and his wife of more than 10 years, Gwyneth Paltrow, were divorcing. Gwyneth Paltrow announced the separation on her website Goop.com and used the term “conscious uncoupling” to describe their approach to divorce.  Although the term had been originally coined by marriage and family therapist, Katherine Woodward Thomas, as with anything else endorsed by celebrities, the phrase went viral after her post.  It was of particular interest to me personally given my chosen profession as a divorce lawyer.

As professionals, especially ones whose practice is client-centric, we are always striving for better ways to do our jobs.  In my case, that means getting clients their desired result in the most effective and streamlined way possible. After practicing for several years, experience has shown me time and time again, that people going through divorce are most satisfied with the process when they feel they have control over it (i.e., are “conscious[ly] uncoupling”) and can proceed with a form of alternative dispute resolution (such as mediation) rather than traditional, costly, protracted litigation.

Even as American culture has become more progressive and accepting, divorce is still considered taboo and is almost always surrounded by extreme negativity and hostility.  Even if the couple themselves wants to proceed amicably, they are unfortunately often allowing others in their life (parents, siblings, friends, new boyfriend or girlfriend) to control the dialogue and encourage them to dig in their heels.

Once people “dig in”, it is often impossible to “dig out”.  Protracted litigation only intensifies negativity and hostility. The idea that divorce has to be a negative experience then becomes a self-fulfilling prophecy, in which divorcing parties behavior, is influenced by their expectation that divorce must be awful.  I believe if you change the conversation surrounding divorce and allow yourself to “consciously uncouple” you will have much more satisfying experience surrounding your divorce.

I recently completed a 40-hour divorce mediation training program. This program has only solidified my beliefs that in many cases, a mediated divorce, is a better divorce. That is not to say that litigation is never necessary. There are some circumstances that cannot be mediated and some people that simply cannot effectively participate in mediation. That said though, divorce is multi-dimensional: it is legal, it is financial, and it is emotional. The great thing about mediation is that it can effectively address each of those dimensions.

(1) LEGALLY

Whether you litigate or mediate, you achieve the same end result: a legal divorce.  A mediated divorce however is often faster, less adversarial and provides more flexible and creative resolutions, narrowly tailored to your specific family dynamic.  It also allows for a more confidential process than airing out your dirty laundry in a series of public court filings and appearances.

(2) FINANCIALLY

I will never say “always” or “never” because I’ve come to learn that nothing is absolute.  A mediated divorce however, can certainly be more cost effective. Spending less to uncouple leaves more to be divided between the parties and therefore places both parties in a better position to maintain financial independence and stability post-divorce.

(3) EMOTIONALLY

Although emotions can run high during mediation, there is a much more focused approach on compromise and collaboration rather than “winning” as is seen in litigation. When people feel their spouse is negotiating in good faith and trying to be part of the solution, rather than part of the problem (i.e., zealously litigating over the smallest of disputes), they walk away feeling better about uncoupling, which leads to healthier relationships with themselves, their ex-spouse, and future romantic partners.

The takeaway from all of this is that choosing to uncouple, does not always have to be adversarial, financially draining and emotionally damaging. Take control of your divorce and find avenues in which to minimize the long-term effects.  Before deciding to wage war against your spouse, consult with an experienced and trained family law mediator to see how mediation can work for you.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time.  Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Last week, the prolific Judge Lawrence R. Jones, J.S.C. shed some much-needed light on an essential question; namely: can the court retroactively set an obligor’s child support obligation to a date earlier than the filing date of an actual motion to establish child support in the reported case of Kakstys v. Stevens?  According to Judge Jones, the answer is yes.  More specifically, the answer is yes – at least as far back as the filing date of the complaint for divorce, where the complaint asserts a claim for child support.

In his carefully reasoned decision, Judge Jones drew an important distinction between modifications of existing child support orders as compared to the initial establishment of a child support order.  At first blush, the experienced attorney might react to the suggestion of applying a child support order retroactively by insisting that the “anti-retroactivity” statute, N.J.S.A. 2A:17-56.23a, prohibits modifications of child support retroactive to a date earlier than the filing date of the motion seeking to modify the support award.  And that attorney would be right, if the issue was whether an existing child support obligation should be modified.  Judge Jones’s recent decision applies not to modifications of child support, but in the limited context of establishing the initial child support obligation.

Just How Far Back Can Child Support Go?

For Judge Jones, the critical question as to how far we can retroactively establish child support seems to hinge on the concept of fair notice.  Specifically, the Court found that a properly filed and served Complaint that asserts a claim for child support is clearly sufficient notice to the obligor; however, the Court declined to make this a hard-and-fast rule:

[T]he Court holds that when a party files a divorce complaint that includes a specific claim for child support, the court may ultimately set a child support order retroactive to the filing date, whether or not the applicant has also filed a follow-up pendente lite motion at some date thereafter and irrespective of the date or disposition or any such interim pendente lite motion.  Ultimately, the issue of whether to retroactively set child support to the complaint filing date, or to a motion filing date thereafter, is subject to the discretion of the court, based upon the factual circumstances and comparative equities presented.

As with most things in family law, the discretion of the court and a balancing of the equities are paramount.  And this makes sense.  If the parties lived together, say, for three months after the complaint was filed and paid for the child’s expenses from their shared resources as they always had done, then why should a formal child support order be in effect for those three months?

But the decision arguably opens the door for setting child support effective to an even earlier date.  Here’s a scenario:  The parties have been separated for a year before the complaint was filed.  The mother is the custodial parent, and six months into their separation (i.e. six months prior to the complaint being filed), her attorney sends a letter to the father’s attorney formally notifying him of a claim for child support.  Although not formal notice by way of complaint, this would seem to achieve the goals of adequate and fair notice of a claim for child support that the Court deems critical for establishing an effective date for child support.

Another question that the Court seems to leave open is whether or not child support can, under its holding, be applied retroactively to the filing date of the complaint, or the date of service of the complaint.  Although the Court did not reach an answer to this question, it suggested that the date of service would be the date on which the obligor was actually given adequate notice.  All the more reason to timely serve a filed complaint upon your adversary.

 What about Alimony?

One important question that is raised by the Court’s recent decision is how this may effect alimony.  If notice of a claim for child support serves as the fair and equitable effective date for child support, then couldn’t one argue the same for alimony?  The Court in Kakstys seems to leave the door open for this argument by noting that “New Jersey law makes clear that when parties divorce, certain financial issues . . . are determined by the filing date of the complaint, not by the filing date of any subsequent interim application.”  The Court continues, “If, at a final hearing, these financial claims may be determined and adjudicated retroactive to the filing date of the complaint, logic and reason support the concept that a child support claim, initially set forth in a divorce complaint, may be equitably preserved for trial as well.”

If child support, as a financial issue, can be established as far back as the filing date – or whatever date adequate and fair notice is given – then by this logic, why can’t the same be true for alimony?  Only time will tell, but Judge Jones’s decision seems like a good jumping off point to make this argument under the appropriate facts.

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

In a recent case, Passaic County Board of Social Services on Behalf of T.M. v. A.S., the New Jersey Family Court encountered a unique set of facts.  A mother of two twin girls sought to establish the paternity of her daughters in order that the father would be obligated to commence paying child support.  She named the defendant, A.S., as the father and he submitted to DNA testing.  As it turned out, the DNA test established that A.S. was the father to only one of the twin girls.  The twins had been fathered by two different people, known as “bipaternal twins,” a rare medical phenomenon.

I think most people would agree that the DNA result in this case merits a “huh?” and Judge Mohammed, who rendered the decision in this case, thought so too.   In general, the court observed, the DNA testing process is scientifically sound and very reliable.  However, Judge Mohammed also recognized that under the law, the results of genetic testing create a rebuttable presumption as to paternity.  In other words, even if a DNA test says John Doe is the father, John Doe can still try to disprove those results.  But how do you argue with science?  And should you?

As to the first question, Judge Mohammed’s opinion indicates that you argue with science by questioning the standards and methods used by the DNA specimen collection facility and the testing lab.   Maybe someone along that chain of custody messed up, or maybe the procedures employed by the collection facility or lab are not sound.  Focusing on the sampling, handling, processing, and analysis of DNA, Judge Mohammed set forth several factors to consider when one party questions DNA testing results, as follows:

1) The methods employed and conditions under which the DNA specimen was obtained;

2)  The training, skill, and judgment of DNA handlers;

3)  Whether adequate procedures were in place for specimen collection, storage, transportation, sampling, handling and processing of DNA tests;

4)  “Chain of custody” considerations;

5)  Any evidence of tampering, hacking, user bias, or other external interference calling into question the integrity of the test result;

6)  Whether the testing laboratory adhered to scientifically acceptable, reliable, and established DNA testing and methodology standards;

7)  The ability of the handlers to replicate test results submitted to the court; and

8)  Access to and handling of information regarding abnormal or irregular results, or those collected in error.

If the standards and practices of the collection facility and the lab are sound, and there was no departure from those standards and practices, then the DNA test must be considered reliable evidence.  But maybe the collection facility contaminated the sample, or maybe the lab did not properly store the sample.  Then there might be a good reason for the court to decline to rely on a particular DNA test.

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As to the second question – whether you should argue with a DNA test or not – Judge Mohammed seems to say that, yes you should – but only if the results are cause for a double take.  Generally speaking, Judge Mohammed writes, “a medical or scientific innovation or rarity should not create judicial uncertainty.” In other words, people should trust the results of a DNA test, and if they don’t, then the Court should question the methods used by applying the eight factors listed above.  As Judge Mohammed eloquently put it in the context of the case,

“Given the rarity of this medically acceptable phenomena, coupled with the general public’s lack of awareness, it is not unreasonable to expect that when one is confronted with the DNA test results that show each twin in a given case has a different father, an overwhelming majority will likely express sheer disbelief.  This in turn will give rise to lack of confidence in the results.  One may begin to question whether DNA is truly a valid indicator or “snapshot” of one’s identity.”

And in the context of family law cases – specifically, paternity issues – questioning a curious DNA result will be critical to the child at issue.  As Judge Mohammed emphasized, courts across the country, including New Jersey, “have recognized the profound right of a child to know the identity of his or her parents.”  Our courts have recognized a child’s right to feel “rooted” and know his or her true origins, not only for psychological and emotional reasons, but also for the purpose of medical treatment and genealogical history.  It is the court’s job to ensure that the best interests of the child are served, and it is also the court’s duty to act as gate-keeper of evidence.  The court must question the reliability of DNA testing by evaluating the integrity and reliability of the test results rather than blindly accept DNA results that are cause for skepticism.

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.