There are no easy issues in divorce, so it can seem misleading to say which ones are the “most difficult.” Disputes involving children, however, are almost always the “most difficult.”
When children are involved, another set of interests interrupts the two-way negotiations – or head-to-head clash – of most divorce cases.
Unless you are totally incapable of supporting yourself, there is only so far and so long that you will be willing to wrangle over alimony, for example. But the ground shifts when the issue is not how you will care for yourself, but how you will care for your children. This is only the beginning of the many complications that arise during child support negotiations.
However, with the proper preparation, anticipating likely disagreements, and determining what child support payments should be before you enter mediation or litigation, you can get through the process with minimal stress, and with a deal that’s fair to both you and your children.
How child support works in New Jersey
As with most areas of divorce law, there are many persistent myths and misconceptions surrounding child support in New Jersey. The six basic principles below can help you understand the issue of child support before you start the divorce process.
Child support is the right of the child, not the parent.
Custodial parents sometimes refer to “my child support.” Sure, they may be the ones cashing the checks – but a parent never has a “right” to child support. The laws governing child support in New Jersey state that children “should not be the economic victims of divorce or out-of-wedlock birth.” The basic concept of child support is that a divorce dissolves the bonds of marriage, but not the obligations of parenthood. Therefore, the child is entitled to support from both parents, as would be the case if the parents were still living together. (While some judges have allowed noncustodial parents to pay support directly to children over the age of 18, this is rare, and such an arrangement would almost certainly not be for the entirety of a child support obligation.)
Awareness of this principle may not materially affect the outcome of child support negotiations or of a judge’s decision, but keeping it in mind can lessen tensions and keep divorcing spouses focused on the one thing that will continue to connect them: their children.
The New Jersey Child Support guidelines determine the payment amount (in most cases).
Judges can’t make totally arbitrary decisions about child support payments in New Jersey; nor do divorcing spouses have complete control over their own negotiations.
The non-custodial parent will make weekly child support payments based on a calculation taken from the New Jersey Child Support Guidelines. This is simpler than it sounds – it’s really just a two-page worksheet. If one parent has full physical custody, both will use the “Sole Parenting Worksheet.” If the parents split parenting time, they will use the “Shared Parenting Worksheet.” Appendix IX-A of the New Jersey Rules of Court contains additional explanations and amendments.
The two biggest factors in determining the amount of child support payments are income and parenting time.
New Jersey law assumes that married parents pool their income to support children. If one spouse makes $100,000 annually and the other makes $50,000, then the spouse making $100,000 will contribute more financially to a child’s upbringing. The courts try to maintain this balance after a divorce. Divorced parents’ financial contributions to a child’s upbringing will be proportional, based on income.
b. Parenting time
If one parent is making $100,000 and the other is making $50,000, but the child or children live full time with the wealthier parent, there will, of course, be no child support payments (though that parent might have an alimony obligation). Child support only goes to the custodial parent.
If a child spends two or more nights per week at one parent’s house, the parents will use the Shared Parenting Guidelines, which are slightly more complicated, and which allow judges more discretion in awarding payment. Payments to the parent of primary residence will decrease the more time the child spends with the other parent.
There are some exceptions to the Guidelines.
If both parties’ net income exceeds $187,200 annually, the Guidelines do not apply. At his or her discretion a judge may take the suggested payment based on a joint net income of $187,200 and add a supplementary payment on top.
If the parties’ net combined income is lower than $170 per week, the Court will award discretionary child support based on the child’s needs and the payor’s overall expenses and income. That amount will typically be between $5 and whatever the payment amount would be at an income level of $170 per week.
If a judge decides to deviate from the Guidelines – as, for example, if a couple have six or more children, or if one child has unusual educational or health expenses – then he or she must state the reason in the Court Order.
Child support payments are averaged. Plan for increased expenses as children age.
The Guidelines calculate child support payments based on the estimated cost of supporting a child from birth to age 17 – but it averages out those payments. That means that a custodial parent of a toddler could be receiving more than the court deems necessary to support that child, while a custodial parent of a teenager could be receiving less than the court deems necessary to support that child. The onus is on the parent to save or invest excess funds in the early years, and draw on those savings or investments as costs mount later.
Child support will not cover every expense involved in raising a child.
Child support payments will cover most child care expenses, but some are not included. A child’s health insurance, non-reimbursed medical bills, and extracurricular activities are not included. This doesn’t mean that the custodial parent will be stuck paying hundreds or thousands a year in additional expenses. It only means that divorcing couples should address these anticipated expenses before signing an agreement. An experienced divorce attorney can help you identify costs of concern.
In addition, both parents will have to contribute to a child’s college education costs, with some qualifications.
Child support payments end with “emancipation.”
Child support payments don’t end automatically once a child turns 17 – or 18, for that matter. Child supports end when a child is “emancipated.” This is not a date, but an “event.”
Recent changes to New Jersey law leave a child’s 19th birthday as one possible “trigger” for emancipation. The obligation will also end if the child dies, marries, or enters military service. These are all “emancipatory events.”
However, the child support obligation will continue past the age of 19 so long as the child is enrolled in high school or college, or if the child has a mental or physical disability.
Child support payments will not continue past the “cap” age of 23.
Loss of a job doesn’t end payments automatically.
Child support payments aren’t based solely on a parent’s real income, but potentially on a parent’s imputed income. This means that if you have a Yale MBA and a Harvard JD, but you’re unemployed during the divorce process, the court will make a judgement about what you ought to be able to make rather than what you’re making now, and use that imputed income to calculate child support payments.
This also means that if you lose a job after a divorce, a court will by default hold you accountable for the sum of the original agreement or order. This is a protection against parents who would voluntarily elect to be unemployed or underemployed to avoid making payments.
If you are the custodial spouse and your former spouse has stopped making child support payments, that parent will be “in arrears.” Child support arrears are non-dischargeable debts; even bankruptcy will not erase them. If your spouse owes you child support payments, you should still visit the Family Court with your lawyer to address the situation as soon as possible. The court can order the parent who stopped paying to restart payment and to pay back arrears, or face more severe penalties, including jail time and the seizure of assets.
You might be able to change a child support payment agreement if you can demonstrate changed circumstances.
All that said, circumstances do change, and New Jersey courts will not hold a person to a child support obligation settled or ordered under conditions that no longer apply. If you have been laid off or prevented from working for some other, legitimate reason, contact an attorney who can help you demonstrate to the Family Court that your circumstances have materially changed in a way that is beyond your control, and the court will likely adjust your child support obligation or allow you to renegotiate that obligation with your spouse. The burden of proof is on the paying parent, however.
Choose the right counsel for you and your children
If you’re going through a divorce and have children, you need experienced, sensitive, and attentive legal counsel. Attorney Christopher Leon Garibian and his dedicated team of associate attorneys in NJ will work together and work with you to see your case through to a satisfying, equitable resolution. Contact us today to set up a free consultation at our Parsippany, NJ office.
In the meantime, keep exploring our law blog and legal videos, and check out The Definitive New Jersey Divorce Guide for more information on the divorce process in New Jersey. Ignorance might be bliss, but knowledge of the legal issues ahead of you can only give you peace of mind. Download Our Free Divorce Guide
Christopher Leon Garibian, Esq. is a partner in the matrimonial and family law department of Weiner Law Group LLP. He has over 19 years of experience handling a multitude of Divorce and Family Law Matters throughout New Jersey. He is passionate about family law and takes pride in his ability to effectuate real change in the lives of his clients. He is certified by the State Supreme Court of New Jersey as a Matrimonial Attorney. If you are in need of an experienced Divorce Attorney or Family Law Attorney in NJ, contact us today for compassionate, long lasting legal solutions.