Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Must New Jersey Child Support Guidelines Always Be Used To Determine How Much Should Be Paid?

No.  Following please find how child support lawyers at our East Brunswick, New Jersey law firm handle this common question from our clients. 

History of Child Support

            In 1986, the State of New Jersey adopted child support guidelines. They were developed to provide the court with “economic information to assist in the establishment and modification of fair and adequate child support awards.” See Appendix IX-A, Considerations in the Use of Child Support Guidelines.

            Rule 5:6-A, Child Support Guidelines, dictates that the guidelines MUST be used by the court as a rebuttable presumption to establish and modify child support. The guidelines apply to initial motions to fix child support and applications to modify support. Lozner v. Lozner, 388 N.J. Super. 471 (App. Div. 2006).

            Earned, unearned and imputed income are to be considered in calculating child support. Caplan v. Caplan, 182 N.J. 250 (2005), aff’g 364 N.J. Super. 68 (App. Div. 2003). Alimony, inheritance, investment income, litigation proceeds, military pay, pension and social security payments can be included in income to determine the proper amount of child support. See, generally, Fall & Romanowski, Current N.J. Family Law, Relationships Involving Children at 35:2-1.

            Child support cannot be determined for families with extremely high or low income. Therefore, different “guidelines” are provided in these circumstances so that in families with net income less than the U.S. poverty guideline, the support award “should” be between $5.00 weekly and the support amount calculated at $180 combined weekly income for the designated number of children. See para. 20 at Appendix IX-A, Considerations in the Use of Child Support Guidelines.

            For families with combined net income over $187,200, the court is directed to apply the guidelines up to that amount and then supplement the award with a “discretionary amount based on the remaining income” and factors at N.J.S.A. 2A:34-23. Id. Compare with the three pony rule discussed in Isaacson v. Isaacson, 348 N.J. Super 560. (App. Div.) certif. denied., 174 N.J. 364 (2002) (“Children are entitled to not only bare necessities, but a supporting parent has the obligation to share with his children the benefit of his financial achievement.”). Furthermore, according to Isaacson, if parents can afford it, they should provide for their children. Id.

            There is no requirement that permits dictation as to what child support is to be spent on. According to Appendix IX-A, child support includes coverage for the following expenses:

            “the child’s share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250 per child, per year, and miscellaneous items.” The basic child support award has three categories of allocated support, i.e., what is the child support money spend on (or should be spent on):

38% of the award is for fixed costs which the parent incurs even when the child is not residing with them such as housing, furnishings, utilities and household care items.

            37% of the award is allocated for variable costs which the parent may incur only when the child is with them such as transportation and food.

            25% of the award is allocated to controlled costs, which are costs the parent has control over for spending for the child, i.e., clothing, personal care, entertainment expenses.

            But does every family have the same set expenses for which child support is intended? If the purpose of child support is to support the child, how does the court make sure that happens?

            It has long been held that child support belongs to the children. J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006) (“The purpose of child support is to benefit children, not to protect or support either parent.”) certif. denied, 192 N.J. 295 (2007). Because child support is a right that belongs to the children, the custodial parent cannot waive child support, Kopack v. Polzer, 5 N.J. Super. 114, 117 (App. Div. 1949); aff’d 4 N.J. 327 (1950); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993); Pascale v. Pascale, 140 N.J. 583, 591 (1995); L.V. v. R.S., 347 N.J. Super (App. Div. 2002) Likewise, one parent’s failure to pay the obligation does not constitute a waiver of that obligation by the other parent. Colca v. Anson, 413 N.J. Super. 405, 420-421 (App. Div. 2010)

            Like child support, medical expenses for the children, cannot be waived by the parents. See Gotlib v. Gotlib, 399 N.J. Super 295 (App. Div. 2008) (holding that the right to receive payments for unreimbursed medical expenses belongs to the children as they provide essential benefits to the children and are therefore, not subject to waiver by a custodial parent.)

NJ Permits Deviations from the Child Support Guidelines

            If the court finds that the guidelines are inappropriate in a specific case, it may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the children or the parents’ circumstances. The rule permits a deviation or modification from the guidelines in specific instances. The rule states, in pertinent part,

            The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) injustice would result from application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.

            Paragraph three of Appendix IX-A of the Guidelines authorizes a court to either disregard or adjust the guideline-based award to meet the needs of the child or parent’s circumstances if the “guidelines are inappropriate in a specific case.”

            The deviation must be specified if the guidelines are not going to be used. The court must specifically lists its findings when it deviates from the guidelines. Elrom v. Elrom, 439 N.J. Super. 424, 442-443 (App. Div. 2015). If the support guidelines are not applied in a specific case of the guidelines-based award is adjusted, the reason for the deviation and the amount of the guidelines-based award (before any adjustment) must be specified in writing on the guidelines worksheet or in the support order. If the guidelines are found to be inapplicable in a particular case, the court should consider the factors set forth in N.J.S.A. 2A:34-23 or N.J.S.A. 9:17-53 when establishing the child support award.

Appendix IX-A further advises on deviations:

            “The fact that a family does not incur a specific expense in a consumption category is not a basis for a deviation from the child support guidelines… A parent must show that the family’s marginal spending on children for all items related to a consumption category differs from the average family.”

            The guidelines do not apply to every family situation. For instance, the guidelines are only applicable for six (6) children. See Essex Cty. Div. of Welfare v. Walker, 233 N.J. 464 (App. Div. 1988). If a family has more than six (6) children, then there must be a deviation from the guidelines to calculate support for the seventh, eighth and ninth child. Harte v. Hand, 433 N.J. Super. 457 (App. Div. 2013) and following remand, Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014).

            Deviations are further permitted when a parent files a pendent lite application and financial information is no provided to the court. See Terry v. Terry, 270 N.J. Super 105, 121 (App. Div. 1994).

            Should there be discrete reasons why there should be a deviation from payment of child support? Should there be a deviation when the parents live close to each other and the family benefits from the parents and children seeing each other several times a week. Should a designated number of overnights trigger a deviation? After all, the money is for the benefit of the child, not a reward or punishment for either parent.

            If the above statements are true that child support is a right that belongs to the children and cannot be waived by a custodial parent, how can anyone deviate from paying it? Would it not logically follow that deviations from paying of child support are not and should not be permitted? If child support is to support a child, and the family was going to buy four (4) ponies when the parents lived together as a family, why shouldn’t the child still get the fourth pony if that was the intention all along?

            Consider the purpose of child support and then the needs of the children when making applications for child support. Make your arguments concise and specific when requesting deviations, keeping in mind that the support belongs to the child. Just because the statute says you can, does that make it the right decision? Is the statute wrong? Some would say yes.