In two words, probably not. As a New Jersey divorce and child support lawyer, I know that it is not quite as simple as that. A parent must conclusively prove that their child is independent and responsible enough to make his or her own decisions and take care of his or herself before a New Jersey Family Court judge will order an emancipation. I should also mention how important it is to hire an attorney who only handles family law and divorce related matters. Child support reductions require an accurate documentation of both parent’s finances, but only an expert New Jersey child support law knows how to present the case in a favorable manner for their client. A brand new case Thomas v. Thomas, explores the level of evidence required in emancipation and child support proceedings.
Child Support
How Does Equal Parenting Time Arrangements Affect New Jersey Child Support?
The goal of the New Jersey Child Support Guidelines was to establish a level of fairness and uniformity when a Court awards child support in this state. As a New Jersey Family Attorney, I know that the Guidelines were also developed based on one parent being designated as the “Parent of Primary Residence” and the other parent as the “Parent of Alternate Residence”. However, as an equal parenting time schedule between divorced couples becomes more common (as opposed to the more traditional “every other weekend” schedule), the designation of Parent of Primary Residence vs. Parent of Alternate residence becomes less applicable for purposes of establishing an appropriate New Jersey child support award. Very often, this designation is made strictly for school enrollment purposes if say one parent will be living outside the school district, despite exercising equal parenting time.
[Read more…] about How Does Equal Parenting Time Arrangements Affect New Jersey Child Support?
How Does Child Support and Alimony Work When Our Divorce is Not Over Yet?
I have been asked this exact question countless times during my career as a New Jersey Divorce Attorney. I shall now share with you how I answer this common yet very important question.
I call it the “Two Phases of Divorce.” Now, Phase Two of a divorce is how you are going to co-parent your children, child support and alimony shall be in place (when applicable) and your assets and debts shall be divided consistent with your divorce agreement (or decree).
Phase One of a NJ Divorce case is known in a court room as Pendente Lite which is Latin for “pending the litigation,” or more simply put, “while we are getting divorced.” The law of Pendente Lite essentially says that the parties must maintain the financial status quo of the marriage until the divorce is over.” The first case in New Jersey Divorce history which addressed Pendente Lite goes all the way back to 1856, which first acknowledged that, “the wife has property independent of her husband.” Yes, women have come a long way baby!
[Read more…] about How Does Child Support and Alimony Work When Our Divorce is Not Over Yet?
Does Child Support Automatically End Upon Death Of The Child?
No, an application to terminate child support must be made to the Superior Court of New Jersey. However, pursuant to New Jersey law, a lawyer may obtain a retroactive credit for any child support payments made post-mortem. As New Jersey family law attorneys, we handle many motions to modify or end child support for a variety of reasons. Needless to say, the death of child is a devastating tragedy that affects far too many families. So while a child’s death ends a supporting parent’s obligation to pay child support, as a matter of public policy, a New Jersey Family Court may make any child support paid after the catastrophe of the death is retroactive. As a veteran lawyer, I embrace that if retroactive modification to the death of child’s death were prohibited, these motions would be have to be filed immediately upon the death of the child. No honest attorney or judge here in New Jersey wants a court battle while everyone in the family is still in shock and grieving this heartbreaking loss. As a result, a prohibition on retroactive modifications on child support would actually encourage supporting parents to file inappropriately timed motions while the families are still dealing with a horrific and traumatic tragedy.
The tragic 2008 Family Part of Monmouth County case of Centanni v. Centanni, addressed the issue of if child support can be retroactively modified to the date of a child’s death. This case of first impression was decided by the Honorable Judge McGann. After one of his children died in a car accident, Floyd Centanni filed a motion to modify and reduce the child support he paid to his ex-wife, Andrea Centanni. He argued that the child support should be modified retroactive to the date the child died. The mother, on the other hand, argued that the child support obligation should only be modified to the date that Floyd filed his motion to modify child support. The Honorable Judge McGann of the Family Part of Monmouth County held that the duty to pay child support for the child ended upon the death of that child, and there was no language stated within New Jersey Statute 2A:17-56.23a that showed that the New Jersey Legislature intended to prohibit retroactive modification for such a circumstance. Therefore, the Family Part modified Floyd’s child support obligation to $ 100 a week to provide for the surviving child, retroactive to date of the deceased child’s death on October 6, 2007.
Floyd and Andrea Centanni got married on September 1, 1984. The couple had two children together: Dana who was born on November 5, 1990, and Danielle who was born on January 17, 1989. On June 10, 2004, Andrea and Floyd got divorced, and entered into a property settlement agreement.
In a cruel twist of fate, on October 6, 2007, Dana was killed in a car accident. Floyd filed a motion on January 10, 2008 to reduce his child support obligation. Andrea filed a cross-motion, and oral argument was held on March 28, 2008. Floyd contended that the modification of child support should go back retroactively to the date that Dana died. Andrea opposed this contention, and argued that the modification should only go back to the date Floyd filed his motion for modification.
Judge McGann explained that any conversation about whether child support may be modified retroactively, has to first start with an analysis of New Jersey Statute 2A:17-56.23a. This law states, in part, that no child support payment ordered before the effective date of this law can be modified retroactively by a Family Part court, except for the time during which a motion of modification is pending, and even then only from the date that the notice of motion was mailed. The judge explained that there is no question that the required written notice of motion was mailed. The only issue was whether the child support obligation should be modified to the filing date of the motion, as Andrea contended, or if it should be modified retroactively to the date of Dana’s death, as Floyd argued.
More than twenty years have passed since New Jersey Statute 2A:17-56.23a was passed, and in that time courts have said that there are certain scenarios where a court’s departure from the strict narrow interpretation of New Jersey Statute 2A:17-56.23a may be warranted. In the 1999 New Jersey Appellate Division case of Keegan v. Keegan, an appellate panel reviewed an order of the Family Part that increased child support retroactively. After analyzing the legislative history of N.J.S.A 2A:17-56.23a, the appellate panel stated that the purpose of this state is to fix the loopholes associated with interstate child support enforcement laws, in an effort to benefit children.
Furthermore, in the 1995 New Jersey Appellate Division case of Mallamo v. Mallamo, the appellate panel found that when the trial court reduced a child support obligation from $ 175 to $ 100, made effective to the first day of trial, it did not constitute a prohibited retroactive modification under N.J.S.A. 2A:17-56.23a.
The case most analogous to the issue in Centanni, was the 1995 New Jersey Appellate Division case ofMahoney v. Pennell, which held that the purpose of N.J.S.A. 2A:17-56.23a was to make sure that support payments were paid when they became due. Therefore, a change of circumstance like a loss of employment cannot be used to retroactively modify accrued child support arrearages. However, this is premised on the fact that a duty to pay child support exists. If there is no longer a duty to pay support, then child support logically cannot be due. The issue in that case was emancipation, and the New Jersey Appellate Division held that child support actually can be terminated retroactively to the date the child became emancipated, because that is the date that child support no longer became due.
Judge McGann found that the same reasoning should apply in Centanni. When Dana tragically died, Floyd’s obligation to pay child support for her ended. There is no language in the entirety of New Jersey Statute 2A:17-56.23a that implies the New Jersey Legislature intended to prohibit Family Part courts from retroactively modifying child support upon a death of a child. Judge McGann explained that there were other equitable issues in this case to consider as well. If retroactive modification to the death of child’s death was barred, it would essentially be a financial punishment to the parent paying child support who had, in good faith, thoughtfully allowed a reasonable period of grieving and healing to pass before filing a motion in court to modify child support. As a result, a prohibition on retroactive modifications on child support would actually encourage supporting parents to file inappropriately timed motions while the families are still dealing with a horrific and traumatic tragedy. Therefore, the Superior Court of New Jersey, Family Part of Monmouth County found that New Jersey Statute 2A:17-56.23a did not prohibit the retroactive modification of child support to the date of a child’s death. Judge McGann reviewed the financial documents provided by the parents, and set Floyd’s child support obligation for the remaining child, Danielle, at $ 100 a week, retroactive to the day of the child’s death, on October 6, 2007.
Our law firm may assist you with your child support issues. Please contact us today.
If My Child Support Was Set In New Jersey And I Move to Another State, Does N.J. Still Have Jurisdiction?
Yes. Over the many years I have been practicing as a child support lawyer, it has become more and more common for people to move out of state after a divorce or breakup, either for work, family, or just a fresh start. As the attorneys at our law firm embrace, relocating becomes complicated when there are children involved, as the laws pertaining to child support and custody are different from state to state. In an effort to remedy the confusion in determining jurisdiction between states, the United States Congress passed the Uniform Interstate Family Support Act, which gave a state that entered a controlling child support order, the authority to exercise continued jurisdiction to modify that order. Recent amendments to the law, however, allow parents, that have both moved out of state, to consent to giving jurisdiction to their new state. In Lall v. Shivani, mother Monisha Shivani challenged the exercise of continuing exclusive jurisdiction of the Superior Court of New Jersey, Family Part of Hudson County, and appealed from a post judgment order dated January 5, 2015 that denied the reconsideration of orders that modified her child support obligations. She argued that the orders should be vacated because she moved to North Carolina, her child’s home state, and so New Jersey Family Part courts no longer had jurisdiction to review the issue. The governing statute, the Uniform Interstate Family Support Act, codified in this state as New Jersey Statute 2A:4-30.124 to -30.201, was recently amended, and incorporated provisions that abrogated the previous provisions that gave authority to New Jersey Family Part courts to modify a child support order when the parent and child no longer live in the State of New Jersey. However, when the orders at issue were entered, the previous version of the Act, currently repealed, was controlling law.
During A N.J. Child Support Hearing, Do I Have A Right To Know The Other Parent’s Income?
Yes. The child support lawyers at our East Brunswick, New Jersey, law firm will always ensure that we receive any and all information regarding a parent’s income in order to ensure that the children are protected. Furthermore, our attorneys always make sure that both parents are paying the proper amount as per New Jersey’s child support guidelines. In the following case, a parent went to a child support hearing and asked for an adjournment because she had not been allowed to review the other parent’s income documentation. The trial judge denied her request. However the New Jersey Appellate decision reversed the trial court because she should have been granted an opportunity to review this information before the child support hearing took place.