Guide to "Family Law" in New Jersey

Paul G. Kostro, Esq.

 

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What Happens When The Kids "Grow Up"?

  1. Congratulations - your kid is going to college!! BUT -- Who is going to pay for it?

    In Gac. v. Gac, 351 N.J. Super. 54 (App. Div. 2002), the court reiterated the guidance offered in Newburgh v. Arrigo, 88 N.J. 529 (1982); i.e., that in evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including [but NOT limited to]:


    See also Kids and Divorce: Who Pays for School? By Riker, Danzig, Scherer, Hyland & Perretti LLP; and a similar article.


  2. A child who is an adult (age eighteen or over) may file a complaint in New Jersey, suing both divorced parents for financial assistance to defray the cost of college education. The "[e]nforcement of the right by the child is not necessarily defeated by the fact that [the child] has reached the age of majority[,]" or "merely because both parents are united in their determination to declare the child emancipated." Sharp v. Sharp, 336 N.J. Super. 492 (App. Div. 2001) [Footnote: 2, Citing, Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989)]
    3. .

  3. DOLCE v. DOLCE (App. Div., A-1561-04T2, approved for publication February 7, 2006):

    Emancipation – the conclusion of the fundamental dependent relationship between parent and child – is not a self-executing principle. It does not occur automatically, by operation of law, simply by reason of the dependent child reaching the age of majority, now eighteen. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Indeed, "emancipation need not occur at any particular age . . . ." Ibid.; see also Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972). In fact, a rebuttable presumption against emancipation exists prior to attaining the age of eighteen. Newburgh, 88 N.J. at 543; see also N.J.S.A. 9:17B-3. Correspondingly, reaching the age of majority establishes only "prima facie, but not conclusive, proof of emancipation." Newburgh, 88 N.J. at 543 (citing Alford v. Somerset County Welfare Bd., 158 N.J. Super. 302, 310 (App. Div. 1978); Limpert, 119 N.J. Super. at 440)).

    The issue of "[w]hether a child is emancipated at age eighteen, with the correlative termination of the right to parental support," is fact-sensitive. Ibid. "[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination 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. Newburgh, 88 N.J. at 545.

    A parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child past majority, and such agreement is enforceable if fair and equitable. Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent, Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993), and no agreement between the parents can deprive a court of its authority to require that adequate provision be made for dependent children. On the other hand, however, nothing in the law, and no principle of public policy prevents a parent from freely undertaking to support a child beyond the presumptive legal limits of parental responsibility. See Church v. Hancock, 136 S.E.2d 81, 83 (N.C. 1964); Worthington v. Worthington, 179 S.W.2d 648, 649 (Ark. 1944); Dep't of Revenue ex rel. Hall v. Hall, 699 So.2d 1036, 1037 (Fla. Dist. Ct. App. 1997). In such an instance, the parental obligation is not measured by legal duties otherwise imposed, but rather founded upon contractual and equitable principles. Church, 136 S.E.2d at 83.

    Given the inherent equitable powers of the Family Part, support orders, including those setting emancipation events, "may be revised and altered by the court from time to time as circumstances may require," including an order resulting from an agreement. N.J.S.A. 2A:34-23; see also Lepis v. Lepis, 83 N.J. 139, 146 (1980); W.S. v. X.Y., 290 N.J. Super. 534, 541 (App. Div. 1996); Dunne v. Dunne, 209 N.J. Super. 559, 565 (App. Div. 1986). Thus, "[i]f circumstances have changed in such a way that [the support provision] would no longer be equitable and fair, the court also remains free to alter the prior arrangement." Lepis, 83 N.J. at 161 n.12 (citing Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971) and Rufner v. Rufner, 131 N.J. Eq. 193, 196 (E. & A. 1942)). The duty of support is "always subject to review and modification on a showing of 'changed circumstances.'" Lepis, 83 N.J. at 146 (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)).

    "[T]he moving party has the burden of establishing the circumstances that warrant the change." Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). In this regard, while an analysis of "'changed circumstances' [is] not limited in scope to events that were unforeseeable at the time of divorce," Lepis, 83 N.J. at 152, at least from an objective perspective, it is clear that the "'reasonable expectations of the parties at the time . . . the agreement'" was executed is a significant consideration. Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992) (quoting Dilger v. Dilger, 242 N.J. Super. 380, 388 (Ch. Div. 1990)); Avery v. Avery, 209 N.J. Super. 155, 161-62 (App. Div. 1986). Indeed, "[i]f the existing support arrangement has in fact provided for the circumstances alleged as 'changed,' it would not ordinarily be 'equitable and fair,' to grant modification." Lepis, 83 N.J. at 153 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

    Unlike modification of an alimony award, "[w]hen the movant is seeking modification of child support, the guiding principle is the 'best interests of the children.'" Lepis, 83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971)); see also Bengis v. Bengis, 227 N.J. Super. 351 (App. Div. 1987). Moreover, where there has been a voluntary undertaking to advantage the child beyond that minimally required, courts must "giv[e] due weight to the strong public policy favoring stability of [consensual] arrangements," Smith, 72 N.J. at 360, before releasing one of the contracting parties from disadvantageous terms actually agreed upon. Cf. Konzelman v. Konzelman, 158 N.J. 185, 193 (1999).

    Settlement agreements in matrimonial matters, being "essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability" in equity, provided they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981) (citing Carlsen v. Carlsen, 72 N.J. 363, 370-71 (1977); see also Lepis, 83 N.J. at 153; Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960). "'[S]eparation agreements . . . are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'" Konzelman, 158 N.J. at 194 (quoting Gordon v. Gordon, 675 A.2d 540, 544 (Md. 1996)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). "And while incorporation of a [Property Settlement Agreement] into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004).


  4. Law Lessons from Mills v. Mills (App. Div.; Docket No. A-1764-04T3; Decided October 20, 2005):

    A child may intervene in the post-divorce-judgment litigation between the child's parents to compel contribution toward the child’s college expenses.

    The right to child support belongs to the child; and that right cannot be destroyed contractually by the parents. Kopack v. Polzer, 4 N.J. 327, 331 (1950); Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989); Pascale v. Pascale, 140 N.J. 583, 591 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Parents may, however, allocate that support. See Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994).

    Generally, a child should not intervene in the child's parent's divorce proceedings; provided that the child's interests were adequately represented by a parent. Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993); White v. White, 313 N.J. Super. 637, 640-41 (Ch. Div. 1998).

    Under certain circumstances, the assumption by one parent of the entire obligation to fund a child's future college expenses may in fact have been a contractual destruction of the child's right to support -- if at the time that the child goes to college, the "obligated" parent is impecunious, the shifting of the college obligation entirely to that one parent may have been substantively equivalent to "bargaining away" the child's right to college support.

    An Order by which one parent was relieved of that parent's obligation to contribute to a child's college expenses in return for an increase of the support should not be enforced if it was not fair and reasonable. Moss v. Nedas, 289 N.J. Super. 352, 359 (App. Div. 1996).

    When the child's interests was or is not adequately represented, the child may intervene as a matter of right, pursuant to R. 4:33-1.

    To succeed on a child's motion to intervene, the child is required to: (1) file a timely application to intervene; (2) claim an interest relating to the property or transaction which is the subject of the action; (3) be so situated that the disposition of the action may impair or impede the child's ability to protect that interest; and (4) show that the child's interests are not adequately represented by the existing parties to the suit. Unlike permissive intervention under R. 4:33-2, intervention as of right under R. 4:33-1 is not discretionary. If the required showing is made, an application for intervention as of right must be granted. Vicendese v. J-Fad, Inc., 160 N.J. Super. 373, 379 (Ch. Div. 1978).


  5. Law Lessons from Wolfe v. Balfe, (App. Div., Docket No. A-3979-04T5, Decided November 18, 2005, not approved for publication):

    Our public policy regarding education, as well as the child support component of N.J.S.A. 2A:34-23, allows courts substantial discretion in determining whether to require a non-custodial parent to pay for a child's college education expenses. Hoefers v. Jones, 288 N.J. Super. 590, 616-17 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996). Courts possess broad equitable powers to accomplish substantial justice. Kiken v. Kiken, 149 N.J. 441, 455 (1997) (citing Weitzman v. Weitzman, 228 N.J. Super. 346, 358-59 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989)). Children of divorce have a right to financial support from their parents, at least at a level of the standard of living to which they had grown accustomed to prior to the separation. Connell v. Connell, 313 N.J. Super. 426, 430 (App. Div. 1998) (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)). "Both parents share the obligation to support their children, determined mainly by the quality of economic life during the marriage, and not mere survival." Id. (citing Pascale v. Pascale, 140 N.J. 583, 592 (1995)).

    In this case, a post-divorce-judgment order that awarded the plaintiff mother one-half of the tuition for the parties’ son to attend the University of Delaware affirmed.  Contrary to the defendant father’s arguments on appeal, (1) the trial court properly exercised its discretion by ordering him to reimburse the mother because the parties’ property settlement agreement required him to pay his son’s entire tuition and because the father did not file financial information to support his claim of changed circumstances and (2) the son’s choice of college should not have been restricted to a college that charged tuition comparable to a New Jersey institution because the PSA contained no such restriction and because the father did not present proof that the University charged unreasonable tuition.


  6. Law Lessons from Dimitro v. Dimitro (App. Div., A-3196-03T3, November 30, 2005, not approved for publication): An agreement concerning the allocation of payment for a child's college expenses may be modified judicially under the appropriate circumstances. Lepis v. Lepis, 83 N.J. 146 (1980).

    However, it might be less appropriate to modify an agreement that resulted from the parties conscious decision not to burden their daughter with loans under any circumstances than an agreement that simply did not consider the issue. Glass v. Glass, 366 N.J. Super. 357 (App. Div.), certif. denied, 180 N.J. 354 (2004).


  7. Return to the Topic of Child Support


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