Child Support

Supporting Mum

In New Jersey, the law imposes an obligation upon parents to support their children. That child support belongs to the children and not the custodial parent. Consequently, a custodial parent cannot waive a child’s right to child support, and is not required to show hardship to receive an award of child support. Even an explicit waiver agreement between the parents cannot negate a child’s right to support.

Required Financial Information

At the outset, and any time a change in support is sought, complete financial information (i.e., the Case Information Statement, including the most recent income tax returns with W-2 forms, 1099s and the three (3) most recent paystubs) of both parents is necessary for any order of child support.

Imputation of Income

When a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child’s needs. When fixing the ability to pay child support, the court may use the potential earning capacity of an individual, rather than that person’s actual income. Moreover, in addition to a party’s income, any assets may be considered when determining a fair and just child support award.

In determining the amount of income to impute to a party, the court considers the party’s potential employment and earning capacity, based on that individual’s work history, occupational qualifications, educational background, and prevailing job opportunities in the region.

Child Support Guidelines

Most child support awards are computed pursuant to the Child Support Guidelines, which shall be applied when an application to establish or modify child support is considered by the court.

The Child Support Guidelines were developed to provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards.

The Child Support Guidelines assume relative spending on children in the three broad consumption categories as follows: 38% fixed expenses, 37% variable expenses, and 25% controlled expenses.

Fixed costs (38%) are those incurred even when the child is not residing with the parent. Housing-related expenses (e.g., dwelling, utilities, household furnishings and household care items) are considered fixed costs.

Variable costs (37%) are incurred only when the child is with the parent (i.e., they follow the child). This category includes transportation and food.

Controlled costs (25%) over which the PPR (parent residing at the child’s primary residence), as the primary caretaker of the child, has direct control. This category includes clothing, personal care, entertainment, and miscellaneous expenses.

Health Insurance

The Child Support Guidelines also reflect that in addition to the determined amount of child support, a parent also may be obligated to pay sums for the child’s reasonable health insurance and predictable and reoccurring unreimbursed health care expenses exceeding $250 per year.

New Jersey’s public policy is to assure children are provided health insurance coverage; i.e., all children in the state must have health care coverage, either through public programs or private coverage. The Child Support Guidelines place the same obligation on both parents, even though they may be separated or divorced. If health insurance is available to both parents, the parent who can obtain the most comprehensive coverage at the least cost shall be ordered to provide health insurance for the child.

Extraordinary Expenses

The court may also approve extraordinary expenses necessary for the child.

When faced with additional expenses incurred in connection with the care and rearing of the couple’s children, such as camp, private school, sports, and other extra-curricular activities, the trial court must determine which extracurricular activities fall within defendant’s monthly child support payment and which are extraordinary expenses. It then must determine whether those expenses are reasonable and if so, what proportion must be paid by supporting spouse.

Child Support Worksheet

A Child Support Guidelines Worksheet must be completed for each child support order established or modified using the Child Support Guidelines. The Shared-Parenting Worksheet shall be used if the Parent of Alternate Residence (PAR) has the child for the substantial equivalent of two or more overnights per week, excluding extended PAR Time (e.g., vacations) and has shown that separate living accommodations for the child are provided in the alternate household (see shared parenting standards — at page 16, paragraph c). In all other circumstances, the Sole-Parenting Worksheet shall be used.

Deviation From The Guidelines

Nevertheless, the use of the Child Support Guidelines is a rebuttable presumption. In appropriate circumstances, the Child Support Guidelines permit the court to disregard the Guidelines or adjust the Guidelines-based award to accommodate the needs of the children or the parents’ circumstances. However, the custodial parent bears the burden of establishing the reasonableness of the requested expenses.

College Expenses

In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education.

High Income Families

When a parent’s income exceeds the maximum amount listed in the Child Support Guidelines (currently $187,200), the court must apply the Guidelines up to $187,200, and then determine whether any supplementary award is appropriate. Where the parties have the financial wherewithal to provide for their children, the children are entitled to the benefit of financial advantages available to them. Such children are entitled to not only bare necessities, so a supporting parent has the obligation to share with his children the benefit of his or her financial achievement. When determining discretionary child support over the Guideline maximum, the dominant guideline for consideration is the reasonable needs of the children, which must be addressed in the context of the standard of living of the parties.

Social Assistance

The Child Support Guidelines treat distributions from government and private retirement plans, including Social Security, as gross income to be used in computing the monetary child support figure.

The Child Support Guidelines prohibit SSI benefits received by the child from being deducted from a support award. The prohibition against crediting a child’s SSI benefits against a parent’s support obligation is accomplished by excluding SSI benefits from the definition of ‘government benefits’ that are to be deducted from the support award. However, if the child receives Social Security Disability (SSD) payments, then the parent may be entitled to a credit for those payments on the child support obligation.

Child Support Modification

Once the amount of child support has been set, it can later be modified. However, the party seeking modification of a child support obligation has the burden of demonstrating a change in circumstances warranting an adjustment. One such example of a change in circumstances is an increase or decrease in the supporting spouse’s income. Also, absent the parties’ agreement to the contrary, attendance at college away from home is considered a change of circumstances calling for the recalculation of child support.

There is no mathematical formula for determining what change of circumstance is significant; but, a temporary change does not warrant modification; and anticipation of an event is insufficient.

An initial showing of changed circumstances must be made before a court will order discovery of financial information. The opponent of a motion for modification of child support obligations based on changed circumstances is not required to disclose financial information until such time as the petitioner demonstrates a change in circumstances.

Cost of Living Adjustments

All child support orders issued after September 1, 1998, and paid through Probation, must be adjusted every two years to reflect the increase in the cost-of-living. The cost-of-living adjustment (COLA) shall be based on the average change in the Consumer Price Index for the Metropolitan statistical areas that encompass New Jersey and shall be compounded. [Information on how to do the applicable calculation is published in the NJ Family Legal Blog, published by Fox Rothschild LLP.]

Before any COLA is applied to the then-existing child support order, the parties must be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within thirty days of the mailing of the notice. An obligor may contest the adjustment if the obligor’s income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index.

If either party challenges the initial determination that a COLA is, or is not, warranted, the appeal is heard by a hearing officer. Any party dissatisfied with the recommendation of the hearing officer is entitled to file an appeal with the court. A judge must then consider the proofs submitted, and the party seeking relief from the court bears the burden of proof. Because the only relevant evidence at such a hearing is the obligor’s income for the two years in question, the opposing party should be afforded a reasonable opportunity to review the tax returns (the corresponding W-2 and 1099 forms must be attached) that will be the subject of the hearing.

Emancipation

A child’s attainment of the age of eighteen creates a rebuttable presumption of his emancipation. Child support may also end upon a child’s death, marriage, or enlistment in the armed services; but, whether a child is emancipated is a fact sensitive question, necessitating review of the unique circumstances existing when the request to end child support is made — child support does NOT terminate automatically; it needs to be requested from the court.

The main inquiry in an emancipation case is whether the child in question has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own. This determination is ordinarily fact-specific, and involves a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things. One indication that a child is not yet emancipated is that he or she is a full-time student.

Marital Agreements

Parents are permitted to fashion an agreement contrary to prevailing law, as long as they do not bargain away the child’s support; i.e., parties may agree to deviate from the standards for child support in the Child Support Guidelines, but not if the child will be prejudiced.

A parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child beyond the time that would otherwise be mandated. Such agreements are enforceable if they are fair and equitable. When parents have created an enforceable agreement as to child support, the parental obligation is not measured by legal duties otherwise imposed, but rather founded upon contractual and equitable principles.

Given the inherent equitable powers of the court, support orders, including those setting emancipation events, may be revised and altered by the court from time to time as circumstances may require. However, if an existing support arrangement has in fact provided for the circumstances alleged as ‘changed,’ it would not ordinarily be equitable and fair to grant modification. But, when there is no indication that the parties considered a possibility when they agreed to a spousal agreement, upon request for modification, the court is required to determine what is warranted under the prevailing circumstances.

Interstate Enforcement Of Support Orders

In March 1998, the Uniform Interstate Family Support Act (UIFSA) was enacted. UIFSA provided for consistent enforcement of support orders by establishing continuing, exclusive jurisdiction.

With respect to child support, UIFSA provides:

A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a child support order:

(1) as long as this State remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(2) until all of the parties who are individuals have filed written consents with the tribunal of this State for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

Therefore, under UIFSA, jurisdictional disputes are resolved by reference to the concept of continuing, exclusive jurisdiction. A state that has issued an order retains continuing, exclusive jurisdiction if it is the residence of the obligor, the obligee, or the child, unless the parties have provided written consent for a certain state to assume continuing, exclusive jurisdiction.

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To discuss your specific situation, please call me, Paul G. Kostro, Esq., to schedule an appointment: 908-232-6500 or Paul@Kostro.com

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