Guide to "Family Law" in New Jersey

Paul G. Kostro, Esq.

 

 ▲Return to General Topic Index
◄Return to Previous Page

How Much Child Support is Due?

  1. Child support is generally calculated in accordance with Rule 5:6A "Child Support Guidelines"; which is supplemented with the following Appendixes:



    See also: Rule 5:6B Cost of Living Adjustments for Child Support Orders


  2. Free N.J. Child Support Calculators are available [their accuracy has NOT been verified by me] on the Internet here and here.


  3. Law Lessons from Llewellyn v. Llewellyn (App. Div., A-4063-04T1, November 28, 2005, not approved for publication): Pursuant to N.J.S.A. 2A:17-56.23a, no child support order shall be retroactively modified by a court, except with respect to the period during which there is a pending application for modification, retroactive to the date of the filing of the application.


  4. N.J.S.A. 2A:17-56.23a provides that "child support" can be modified upon the occurrence of a "change of circumstances," IF a motion for modification is filed within 45 days of the change in circumstances --- after the 45 day window of opportunity, IF appropriate, modification shall be permitted only from the date the motion is filed with the court.

    The prohibition against retroactive modification of "child support" applies to the support derived through application of the child support guidelines [Cf. Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999)], but does NOT necessarily apply to additional obligations imposed to address the needs of the children (e.g., day care expenses).

    Furthermore, N.J.S.A. 2A:17-56.23a only precludes a retroactive decrease in child support. Whether an increase in child support should be imposed retroactively lies within the sound discretion of the trial judge. See Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981).

    See Hildebrand v. Petterchak, Unpublished Opinion [App. Div.; Docket No. A-5037-03T3; Decided September 27, 2005]


  5. Law Lessons from Goldberg v. Goldberg (App. Div. A-3205-00T3, Not Published, Filed May 21, 2002): N.J.S.A. 2A:17-56.23a preclusion of retroactive termination of child support does not apply where the child is emancipated. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995).


  6. Law Lessons from McCoullough v. McCoullough (App. Div.; Docket No. A-6545-03T1; Decided September 20, 2005; Not approved for publication):

    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. Caplan v. Caplan, 182 N.J. 250, 268 (2005). Essential to a finding of underemployment is the belief that the obligator is purposefully earning less than he or she is able. Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998).


  7. Law Lessons from Beck v. Beck (App. Div., Docket No. A-3972-03T5, Decided November 29, 2005, not approved for publication): A party asserting inability to work due to disability bears the burden of proving the disability. Ordinarily, then, that party must produce evidence to carry that burden. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001).

    On a motion to recalculate child support, there needs to be evidence presented of the attempts made to find another job; supporting certifications submitted must be from people who had relevant expertise; and the evidence presented must show (by way of letters, listings, employment recruitment and opportunities) the positions that have been applied and interviewed for -- what is the record as far as gaining employment.


  8. Law Lessons from Sasso v. Dubinski (App. Div., Docket No. A-3158-04T2, Decided November 10, 2005, not approved for publication):

    Social Security Income benefits may not be used as income when computing child support. See Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004). However, Social Security Disability benefits are included in the income of a supporting parent for child support purposes.

    N.J.S.A. 2A:17-56.23a prohibits the reduction or elimination of child support arrears. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (The statute does not allow a "change of circumstances . . . [to be used] . . . as a basis to modify retroactively arrearages which already accrued under a child support order.")


  9. Law Lessons from Werner v. Werner (App. Div., Docket No. A-2659-04T2, Decided November 17, 2005, not approved for publication):

    Lepis requires a substantial change in circumstances to modify a child support obligation. Lepis, at 146-47 (citations omitted). Ordinarily, examples of such "changed circumstances" warranting modification include:
    (1) an increase in the cost of living;
    (2) increase or decrease in the supporting spouse's income;
    (3) illness, disability or infirmity arising after the original judgment;
    (4) the dependent spouse's loss of a house or apartment;
    (5) the dependent spouse's cohabitation with another;
    (6) subsequent employment by the dependent spouse; and
    (7) changes in federal income tax law.
    Id. at 151 (internal citations omitted).


  10. Law Lessons from Weimer v. Weimer (App. Div., A-5065-02T5, November 28, 2005, not approved for publication): The source of a court's authority to order a non-custodial parent to contribute to a child's private school education lies in N.J.S.A. 2A:34-23, which sets forth the factors that are relevant to a determination of child support. One of those factors is the "[n]eed and capacity of the child for education, including higher education." N.J.S.A. 2A:34-23(5). The child support guidelines, however, do not take into account certain "predictable and recurring expenses for children that may not be incurred by average or intact families such as private elementary or secondary education. . . ." Pressler, Current New Jersey Court Rules, Appendix IX-A to R. 5:6A at 2414 (2004). In Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff’d o.b., 288 N.J. Super. 478 (App. Div. 1996), the court adopted a fourteen-factor test to assist in the determination of whether a non-custodial parent should be required to contribute to private elementary school tuition.


  11. Law Lessons from Dimitro v. Dimitro (App. Div., A-3196-03T3, November 30, 2005, not approved for publication): Defendant's children from his re-marriage constitute changed circumstances that warrant a re-examination of his support obligation. Martinez v. Martinez, 282 N.J. Super. 332, 341 (Ch. Div. 1995).


  12. Law Lessons from CALLAS v. CALLAS (App. Div., A-1099-04T5, December 15, 2005, not approved for publication):

    Property Settlement Agreement may employ the use of a life insurance policy as security for the defendant's financial obligations for the children; to assure the children’s continued future care. Jacobitti v. Jacobitti, 135 N.J. 571, 574-75 (1994); Schwarz v. Schwarz, 328 N.J. Super. 275, 286 (App. Div. 2000); McCarthy v. McCarthy, 319 N.J. Super. 138, 146 (App. Div. 1999). Both consensual agreements and judicial decrees are subject to the same standard of "changed circumstances" to modify a provision imposed for the benefit of the children. Lepis v. Lepis, 83 N.J. 139, 148 (1980). Modification will not be granted, however, if the parties have expressly provided for the circumstances that have now changed. Innes v. Innes, 117 N.J. 496, 504 (1990). One "changed circumstance" warranting modification in the amount of a support obligation is a change in the supporting spouse's income. Lepis, supra, 83 N.J. at 151.

    Support modification applications must consider the parties’ incomes from all sources, earned and unearned. Miller v. Miller, 160 N.J. 408, 421 (1999); Lepis, supra, 83 N.J. at 153; Bonnano v. Bonnano, 4 N.J. 268, 275 (1950). As specifically mandated in Isaacson v. Isaacson, 348 N.J. Super. 560, 585-586 (App. Div.), certif. denied, 174 N.J. 364 (2002), the supporting parent must produce his tax returns and a case information statement (CIS) on a changed circumstances application.

    Equitable enforcement of stipulations between litigants which are set forth in settlement agreements must be provided if no harsh or unfair contract results. Carlsen v. Carlsen, 72 N.J. 363, 370-371 (1977); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-582 (1960). "Such agreements are essentially consensual and voluntary in character and therefore entitled to considerable weight with respect to their validity and enforceability notwithstanding the fact that such an agreement has been incorporated in a judgment of divorce. Carlsen, [supra, 72 N.J. at 371.]" Petersen v. Petersen, 85 N.J. 638, 642 (1981).


  13. Law Lessons from SHAFFER v. SHAFFER (App. Div., A-884-04T1, December 19, 2005, not approved for publication): A parent may NOT use a child's funds that the child received under the Uniform Gift to Minors Act, to pay for the child's college expenses. In Cohen v. Cohen, 258 N.J. Super. 24, 30-31 (App. Div.), certif. denied, 130 N.J. 596 (1992), the Court held: In New Jersey, the estate of a minor may not be used for his support and maintenance if those who are legally responsible for the minor have sufficient funds to enable them to fulfill their responsibilities . . . In view of this well established principle, we construe the Uniform Gift to Minors Act in the same way that the courts of other states have done. We hold that despite the broad language of the statute purporting to confer wide discretion on the custodian, a custodian who is also a parent cannot properly use assets of a UGMA account to defray the parent's legal obligations to a child if the parent is financially able to support the child.


  14. Law Lessons from LISTFIELD v. ROBINSON (App. Div., A-5566-03T5, December 22, 2005, not approved for publication): Child support orders are subject to review and modification upon a showing of “changed circumstances.” Lepis v. Lepis, 83 N.J. 139, 146 (1980). Even after divorce, children are entitled to benefit from the good fortunes of their parents. W.S. v. X.Y., 290 N.J. Super. 534, 540 (App. Div. 1996). "'[C]hanged circumstances' are not limited in scope to events that were unforeseeable at the time of divorce," and may include, among other things, maturation of the children, increased cost of living, a change in the payor spouse’s income, and subsequent illness or disability. W.S., supra, 290 N.J. Super. at 539; Chobot v. Chobot, 224 N.J. Super. 648, 653 (App. Div. 1988). When modifying an order of child support, the "guiding principle is the 'best interests of the children.'" Lepis, supra, 83 N.J. at 157. In order to make out a prima facie case for a change of circumstances, a party must demonstrate that the "child's needs have increased to an extent for which the original arrangement does not provide." Ibid.


  15. Law Lessons from SAMMARTINO v. SAMMARTINO ( App. Div., A-3100-04T1, January 4, 2006, not approved for publication): Courts can "modify alimony and support orders at any time." Lepis v. Lepis, 83 N.J. 139, 145 (1980); N.J.S.A. 2A:34-23. Consequently, "alimony and support orders define only the present obligations of the former spouses." Lepis, supra, 83 N.J. at 146. Thus, alimony and support obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Ibid. (citations omitted). Examples of such "changed circumstances" warranting modification include: Another factor is "whether the change in circumstance is continuing." Id. at 152. Temporary circumstances are an insufficient basis for modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)) (temporary unemployment not sufficient). "If it were otherwise, a [spouse], by deliberate intent or disinclination to work, might defeat or avoid [their] marital obligation of support." Bonanno, supra, 4 N.J. at 275 (quoting Robins v. Robins, 106 N.J. Eq. 198, 200 (E. & A. 1930)).


  16. Law Lessons from LUBETKIN v. LUBETKIN (App. Div., A-1712-03T5, January 4, 2006, not approved for publication): An agreement to reconsider child support under the guidelines after sixty months eliminates the need for a showing of changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980). An agreement to apply the child support guidelines is an agreement to apply all of the relevant principles, including the paragraph that requires a court to "supplement the guidelines-based award with a discretionary amount" based on net income in excess of the highest combined net income included in the schedule of child support awards, "and the factors specified in N.J.S.A. 2A:34-23." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2320 (2006); see Caplan v. Caplan, 182 N.J. 250, 266 (2005), and 364 N.J. Super. at 85-86; see also Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002); R. 5:6A.

    The "trial court's goal is to calculate a child support award that is in the best interest of the child after giving due consideration to the statutory factors and the guidelines."

    Where a parent's income fluctuates, the interests of the children and their parents' interests in fair allocation of and certainty with respect to support obligations requires a trial judge to fix reasonable income in such a case. See Lepis, 83 N.J. at 148; Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004).

    Under the guidelines, absent evidence that the approach is not reasonable under the circumstances, income that "is sporadic or fluctuates from year-to-year," must be evaluated by averaging that income "over the previous thirty-six months." See Pressler, Appendix IX-B to R. 5:6A at 2327 ("Sporadic Income").

    The guidelines permit deviations that are supported by a showing of good cause and define good cause. R. 5:6A. The deviation should be limited to that required by the "good cause" shown. Evidence of a significant, atypical income provides "good cause" to exclude the share of the atypical income from the average. It does not establish good cause to disregard the principle of income averaging.

    Where a determination about income is made before information on at least six months of earnings is available, the general rule requires a judge to use the income earned during the prior year. See Pressler, Appendix IX-B to R. 5:6A at 2329 ("Collecting and Verifying Income Information").

    Evidence that a parent is educated and worked at some point during the marriage is sufficient to require imputation of income. See Pressler, Appendix IX-A to R. 5:6A at 2310 ("Imputing Income to Parents"). Any increase in the cost of transportation for the children attributable to a parent's employment should be deducted from imputed income if the parent does not work or added to the basic child support award if the parent works. Id. at 2308 ("Expenses That May Be Added to the Basic Child Support Obligations").

    The judge must make specific findings to quantify the children's needs beyond the basic child support and in light of the parents' income beyond the guidelines amount. Caplan, 182 N.J. at 266, 271; see also Caplan, 364 N.J. Super. at 86.

    The voluntary support that a parent has paid in the past is evidential but not conclusive of either that parent's ability to pay or the children's needs. See Caplan, 182 N.J. at 271.


  17. Law Lessons from BANIA v. BANIA (App. Div., A-4931-03T2, January 20, 2006, not approved for publication):

    While the court has the power to order a modification of either a child support award, see Lepis v. Lepis, 83 N.J. 139, 149 (1980), or a settlement relating to child support, see Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div. 2000), it is the burden of the party seeking that relief to demonstrate changed circumstances. See Lepis, supra, 83 N.J. at 157.

    It is well settled that the most important consideration in any family court matter is the best interests of the children. See Monmouth County Div. of Soc. Serv. for D.M. v. G.D.M., 308 N.J. Super. 83, 88-89 (Ch. Div. 1997). It is equally well established that the right to child support belongs to the child, and not to the parent, and that it is therefore a right that the parent cannot waive. See Pascale v. Pascale, 140 N.J. 583, 590 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).


  18. Law Lessons from: UTTAL v. PATON (App. Div., A-632-04T2, March 7, 2006, not approved for publication):

    The Social Security Administration's determination that a person is totally disabled creates a rebuttable presumption that such person is totally disabled from employment. See Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001).

    A court must consider "Social Security disability payments received for the child's benefit not as a credit against support payable but as a factor in calculating the [payor]'s child support obligation." Tash v. Tash, 353 N.J. Super. 94, 103 (App. Div. 2002) (citing Herd v. Herd, 307 N.J. 501 (App. Div. 1998)). "Government benefits that are received by or on behalf of a child based on a parent's earnings, disability, or retirement, that do not reduce the related benefits paid to the parent, and that are not means-tested, are deducted from the basic support obligation, before calculating each party's percentage share of the obligation. The Guidelines state that these dependency benefits are deemed to replace the lost earnings of the parents." Pasternak v. Pasternak, 310 N.J. Super. 483, 487 (Ch. Div. 1997); see Pressler, Current N.J. Court Rules, comment 4 on R. 5:7-4 and Appendix IX-A, Child Support Guidelines 10c (2006); see generally Burns v. Edwards, 367 N.J. Super. 29, 36-38 (App. Div. 2004).


  19. GIFFORD v. BENJAMIN (App. Div., A-6861-03T5, approved for publication March 7, 2006):

    Because federal Supplemental Security Income (SSI) benefits received by a disabled child are “means-tested” based on the child’s disability and the custodial parent’s financial need, they are not to be credited against the non-custodial parent’s child support obligation under applicable child support guidelines.

    That SSI benefits are “meanstested” means that eligibility is “determined on the basis of the income or resources of the recipient.” Burns v. Edwards, 367 N.J. Super. 29, 36 (App. Div. 2004). The purpose of such benefits is to provide minimally-adequate incomes to disabled indigents.

    In Burns v. Edwards, 367 N.J. Super. 29, 49 (App. Div. 2004) the court held that the non-custodial parent was not required to pay child support out of his SSI benefits when those benefits were his only income and he had no other viable resources.

    While a non-custodial parent’s SSI benefits are not to be included in gross income for the purpose of calculating that parent’s child support, there is no basis for concluding that the child’s SSI benefits should be deducted from the parent’s child support obligation.

    Social Security Disability (SSD) benefits, as distinguished from SSI benefits, are non-means-tested, meaning that eligibility for such benefits is not determined on the basis of the recipient’s income or resources. Burns, 367 N.J. Super. at 36. SSD benefits are designed to replace income lost because an employee is disabled and unable to work. Ibid. As they are a substitute for earned income, SSD payments “may be utilized as income when calculating child support in accordance with the child support guidelines . . . .” Id. at 38.

    The Sole-Parenting and Shared-Parenting Worksheets - Line Instructions for the use of the child support guidelines, specifically exclude SSI benefits received by an obligor from the calculation of gross income. [Pressler, Current N.J. Rules, Appendix IX-B to R. 5:6A at Sole-Parenting Worksheet 2328 and Shared-Parenting Worksheet 2346 (2006).]

    The 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. Government benefits are deducted from a support award by virtue of their inclusion on line 12 of the Sole-Parenting Worksheet and line 11 of the Shared-Parenting Worksheet used to calculate child support. Sole-Parenting Worksheet at 2339 and Shared-Parenting Worksheet at 2355. However, a child’s SSI benefits are not to be deducted from the support award because, as stated in the line instructions, “SSI . . . and other means-tested benefits are not government benefits based on a parent’s earnings record, disability or retirement . . . .” Sole-Parenting Worksheet at 2339 and Shared-Parenting Worksheet at 2355.


  20. Law Lessons from PRYCE v. SCHARFF (App. Div., A-2190-04T3, approved for publication March 27, 2006):

    Under the Court Rules, child support judgments bear post-judgment interest at the rates provided in the Rules. R. 4:42-11(a).

    The Court Rules treat interest on child support judgments somewhat differently than interest on other judgments, by providing that past-due child support payments "are subject to post-judgment interest . . . at the time of satisfaction or execution." R. 5:7-5(g).

    The statute cited in R. 5:7-5, N.J.S.A. 2A:17-56.23a, requires that "[a]ny payment or installment of an order for child support" shall become a judgment by operation of law when due and is to be enforced in the same manner as any other civil money judgment. This statute requires that child support judgments carry post-judgment interest, as do other civil judgments. To that end, Rule 5:7-5(g) implements the statute by specifying that child support judgments are subject to post-judgment interest.

    A child support obligee whose child support is not currently being collected through Probation may file for income withholding where support payments are in arrears for at least fourteen days. N.J.S.A. 2A:17-56.14. Child support payments "not presently made through the probation department shall be so made upon application of either party" absent a showing of good cause. Ibid. Upon the request of either party, Probation may charge a $25 "monitoring fee" to offset the cost of "keeping adequate records to document, track, and monitor support payments." Ibid. See also N.J.S.A. 2A:17-56.22.


  21. Law Lessons from SIEGEL v. SIEGEL (App. Div., A-7004-03T5, April 12, 2006, not approved for publication): In Caplan v. Caplan, 182 N.J. 250 (2005), the Court stated that the beginning point in all child support determinations must be the child support guidelines as set forth in the Rule 5:6A. Id. at 264. From that starting point, the court may modify or disregard the guidelines where good cause is demonstrated. Ibid. See also R. 5:6A. If the combined net income of the parents totals more than $150,800 per year, the court "shall apply the guidelines" up to that amount and "supplement the guidelines based award with a discretionary amount based on the remaining family income." Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IX-A(20) to R. 5:6A at 2320 (2006). In those instances, the court "shall apply the guidelines up to $150,800, and supplement . . . with a discretionary amount based on the remaining family income and the factors in N.J.S.A. 2A:34-23." Ibid. See also Caplan, 182 N.J. at 266. In applying both the Guidelines and the statutory factors, the key is flexibility and the best interest of the children. Pascale v. Pascale, 140 N.J. 583, 594 (1995). The "fairness of a child support award resulting from the application of these guidelines is dependent on the accurate assessment of a parent's net income." Pressler, Appendix IX-A(12) to R. 5:6A at 2310.


  22. PLATT v. PLATT (App. Div., A-1555-04T2, approved for publication April 11, 2006): Income averaging to determine alimony and child support obligations is normally done over a three-year period. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2327-28 (2006). However, under appropriate circumstances, the court may be justified in deviating from the guidelines to a more expansive and representative timeframe [e.g., 5 years].


  23. Law Lessons from RAHIM v. RAHIM (App. Div., A-2809-04T5, April 20, 2006, not approved for publication): A defendant’s argument that he and his former wife agreed to a low child support figure is not meaningful since the right of support belongs to the child, not the parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). The Child Support Guidelines must be used as a rebuttable presumption to establish and modify child support orders. Ordukaya v. Brown, 357 N.J. Super. 231, 239 (App. Div. 2003) (quoting Pressler, Current N.J. Court Rules, Appendix IX-A(2) 2003)); Schwarz v. Schwarz, 328 N.J. Super. 275, 283 (App. Div. 2000).


  24. Return to the Child Support Topic


  25. Return to General Topic Index

NOTE: If you believe that ANYTHING on this Webpage is misspelled, incomplete, inaccurate or downright wrong; or if a Link fails to link to its intended Webpage, please send me an Email, expressing your concern or opinion.

Also, please be mindful that THE INFORMATION AND SOURCES PROVIDED HEREIN MAY NOT BE ACCURATE OR COMPLETE -- YOU SHOULD CONSULT WITH AN ATTORNEY BEFORE RELYING ON THIS INFORMATION.  No warranties, express or implied, are made regarding the accuracy, completeness, or usefulness of the information.

Also, please be aware that the information on this Webpage DOES NOT constitute LEGAL ADVICE, which advice will only be given in PRIVATE CONSULTATION, after entering into an ATTORNEY / CLIENT RELATIONSHIP, and the execution of a WRITTEN RETAINER AGREEMENT. Also, simply sending to me an email or providing information to me does NOT create an ATTORNEY / CLIENT RELATIONSHIP   -- if you wish to retain me as your attorney or mediator, you are welcome to call me at (908)486-2200, or to Email me, to schedule an appointment.

Links

Linked sites are NOT under the control of the Paul G. Kostro, A Professional Corporation or Paul G. Kostro, Esq. (the "Authors") and the Authors are NOT responsible for the content of any linked site or any link contained in a linked site.

The Authors do NOT endorse websites, companies or entities to which links are provided.

The Authors reserve the right to terminate any link at any time.

If you decide to access any of the third party sites linked to, you do so entirely AT YOUR OWN RISK.

© Paul G. Kostro, Esq. 2005