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Breaking Up is Hard to Do: Child Support and College Contribution

The philosophy behind child support and the development of the child support guidelines is best expressed in paragraph one of Appendix IX-A of the N.J. Court Rules. Pursuant to paragraph one, (1) child support is a continuous duty of both parents; (2) children are entitled to share in the current income of both parents; and (3) children should not be the economic victims of divorce or out-of-wedlock birth.

Parties cannot waive child support, because unlike alimony, child support is a right that belongs to the child, not the parties. Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993). The amount of support that is to be paid from one parent to the other on behalf of the child is based on the parties’ income and assets as well as their physical and social conditions. Child support is generally more predictable than alimony because child support is calculated using the Child Support Guidelines (“Guidelines”). New Jersey Court Rule 5:6A instructs the Court to use the Guidelines whenever it considers an application to establish or modify child support. The Rule points out that the guidelines must be used as a rebuttable presumption to establish and modify child support orders, meaning that the guidelines-based award is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate.

Most family law practitioners and virtually all courtrooms have computer software that calculates child support. In most cases, the only information the law clerk needs in order to establish child support is (1) the parties’ incomes, (2) the amount of alimony (if any) being paid by one party and received by the other, (3) the number of annual overnights the non-custodial parent exercises with the children, (4) the cost of health insurance on behalf of the children, and (5) the cost of day care.

The drafters of the Guidelines recognized that expenditures are higher than average for teenaged children and lower than average for preteen children. To account for this reality, child support under the Guidelines is slightly higher for children 12 years of age or older. It is therefore important to input into the Guidelines how many children are 12 or older. If a child turns 12 after a child support award has already issued, it is not considered a change in circumstances. This is because child support awards are based on child-rearing expenditures averaged across the entire age range (0 – 17 years old). This means that awards for younger children are slightly overstated. If an award was entered when the child was under 12 years old, it is assumed that the net effect from the time the award was entered to the time the child is emancipated would be negligible. For a more detailed explanation, see Appendix IX-A paragraph 17 of the N.J. Court Rules.

1.What Child Support Covers: Appendix IX-A paragraph 8 of the J. Court Rules states that child support awards include the child’s share of housing, food, clothing, transportation, entertainment, unreimbursed health care of up to $250 per child per year, and miscellaneous items. While many parties agree to divide extracurricular activities outside of child support, the Court Rules instruct that such expenses actually fall under “entertainment” expenses. The Rules specifically state that entertainment expenses include “fees, memberships and admissions to sports, recreational or social events, lessons or instructions…hobbies…and recreational exercise or sports equipment.”

2.What Child Support Does Not Cover: Child support does not include child-care expenses, the cost of adding a child to a health insurance premium, or unreimbursed health care expenses over $250 per year per child. Child-care and health insurance expenses can be added into the Guidelines so that the child support award will increase accordingly. As for unreimbursed health care expenses over $250 per year per child, these should be divided between the parties in proportion to their relative incomes. Line 6 of the Guidelines shows the parties’ respective percentages of income so parties may choose to refer to line 6 to define how they will divide unreimbursed health care expenses. Extra ordinary extra-curricular activities may also be an additional expense, and predictable and recurring expenses are also add-ons to child support. An example of this may be a tutor or expenses for a special needs child.

3.Sole Parenting Worksheet versus Shared Parenting Worksheet: There are two worksheets that can be used to set child support. While both worksheets require the same information, a sole worksheet must be used if the non-custodial parent exercises an average of fewer than two overnights per week with the children. In a sole worksheet situation, the parties are referred to as “custodial parent” and “non-custodial parent.” A shared worksheet is used only when the non-custodial parent exercises two or more overnights per week with the children. In a shared worksheet situation, the parties are referred to as “parent of primary residence” and “parent of alternate residence.” For purposes of calculating child support, the number of overnights exercised by the non-custodial parent or parent of alternate residence does not include extended periods of overnights exercised over vacations or summ Instead, it is the predictable weekly parenting time that counts under the Guidelines. See Appendix IX- A Paragraph 13(b) of the N.J. Court Rules.

4.True Shared Parenting: When parties share true 50/50 custody, it is necessary to deviate from or adjust the Guidelines-based award in order to achieve The Guidelines assume that the parent of primary residence is the only parent who incurs “controlled expenses” on behalf of the child like clothing, personal care, entertainment and other miscellaneous expenses. These “controlled expenses” represent 25% of the child support award. Accordingly, when the parties have a true 50/50 custody arrangement, one parent cannot be assumed to be the parent of primary residence, as that would result in an unfair windfall of child support to that parent. Pursuant to Benisch v. Benisch, 347 N.J. Super. 393, 400-01 (App. Div. 2002), courts must make “adjustments to correct what otherwise would seem to be an injustice in applying the Guidelines without accounting for the unusual fact of the equal custody time between the two parents.” The Appellate Division in Benisch instructed the trial court to “vary the method of applying the Guidelines” in order to “effect substantial justice between the parties.” Id. at 401.

5.Split Parenting: “Split parenting” describes a situation when there are multiple children of the relationship and each parent has physical custody of at least one chi Appendix IX-A Paragraph 15 of the N.J. Court Rules. To determine the net support obligation owed to one parent by the other, two sole worksheets must be run, each considering one of the parents as the non-custodial parent and accounting for the parenting time awarded to the non-custodial parent. Instead of transferring the calculated awards between parents, the two awards are subtracted. The difference is paid by the parent obligated to pay the higher child support award.

6.“Above the Guidelines” Child Support: Pursuant to Appendix IX-A Paragraph 20 of the J. Court Rules, if the parents’ combined annual net incomes exceed $187,200, the court applies the Guidelines up to $187,200 and then supplements that award with a discretionary amount based on the remaining family income (i.e. income in excess of $187,200) and the factors under N.J.S.A. 2A:34-23. The child support software will alert a user when the parties’ combined incomes exceed $187,200 and instruct the user to add a discretionary amount to the guidelines award. The most relevant factors of N.J.S.A. 2A:34-23 to calculate “supplemental” child support are:

  • The needs of the children: The easiest way to determine the children’s needs is to make a chart of those needs, being sure to distinguish between the needs attributable to the children and the needs attributable to the custodial parent. Especially in high income cases, “needs” may include extracurricular activities, lessons, tutors, private school tuition, clothing, food, transportation (if a child can drive, then include gas, car payment, car insurance, car maintenance and repairs), entertainment, camps, study abroad, college savings, and even funds needed to make the custodial parent’s home look more presentabl
  • The standard of living and economic circumstances of the parties: Provide the Court with a snapshot of the marital standard of living via Case Information Statements, certifications and testimony. For example, demonstrate that during the marriage the children took horseback riding lessons, went on vacations to Europe, skied every winter, or wore clothing from Saks Fifth Avenue.
  • Parties’ sources of income: Do not forget that many people receive income from sources other than routine “wages, fees, tips, and commissions.” Such other sources include interest and dividends, rents, bonuses, personal injury awards, interests in estates and trusts, worker’s compensation, unemployment benefits, severance pay, gambling winnings, unreported cash payments and imputed income. Parties can also receive in-kind income through their employment in the form of vehicles, free housing, meals, vacations, etc. The value of that in-kind income should be included as income for purposes of child support.
  • Ages of the children: There are many age-specific expenses that courts consider when awarding supplemental child support. While young children may need private preschool, kindergarten, babysitters or nannies, older children may need tutors, music instruction, vehicles, and money to go on Spring Break.

In 1991, the Appellate Division described a two-part analysis to be applied to high income cases: (1) the reality-based component dictated by the custodial parent’s own income; and (2) the added projections that will allow the children to share in the other parent’s financial gain. Walton v. Visgil, 248 N.J. Super. 642, 650-51 (App. Div. 1991). The case of Strahan v. Strahan, 402 N.J. Super. 298 (App. Div. 2008) established reasonable parameters to this two-part analysis. In Strahan, the Appellate Division faulted the trial court for failing to discuss what portion of certain child-related expenses were actually for the children’s benefit and what portion were for the benefit of the children’s mother (i.e. mortgage, taxes, utilities and car expenses). Id. at 310. The court must be careful not to make the custodial parent the primary beneficiary of these child support payments. Id. (citing Loro v. Del Colliano, 354 N.J. Super. 212, 225-26 (App. Div. 2002)). The Appellate Division also found that the trial court failed to make an analysis of the reasonableness of the “needs” claimed by the mother on behalf of the twin toddlers. Id. According to Accardi v. Accardi, 369 N.J. Super. 75, 88 (App. Div. 2004), the custodial parent bears the burden of establishing the reasonableness of these expenses.” The Strahan court found expenses like (1) a vacation to Jamaica for the children’s nanny, (2) $27,000 per year in clothing, (3) $30,000 per year in landscaping, (4) $3,000 per year in “audio visual” expenses, and (5) $36,000 per year for equipment and furnishings, to be unreasonable and not includable in the calculation of child support absent a valid explanation. Id. at 311.

7.Emancipation. When a child is emancipated, neither party has an obligation to provide support for him or her. In many states, a child is automatically emancipated at 18 years old. That is not the case in New Jersey. In New Jersey, there is no automatic age for emancipation. It is instead a fact-specific inqu Generally, emancipation occurs when the “child has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his/her own.” Dolce v. Dolce, 383 N.J. Super. 11, 17-18 (App. Div. 2006). Depending on the circumstances, emancipation may occur when:

  1. The child reaches the age of majority (18 years old);
  2. The child graduates from high school;
  3. The child goes into the armed forces;
  4. The child marries;
  5. The child graduates from college or graduate school (note that a brief and reasonable hiatus from college normally will not cause a child to become emancipated); or
  6. The child experiences an event that makes him or her self-supporting/

If a child suffers from a severe mental or physical disability, he or she may never be considered emancipated.

8.Children in College: The Guidelines were intended to apply only to children under 18 unless the children are still attending high school or a similar secondary educational Accordingly, when a child is in college, the courts are not to apply the guidelines to that child and are instead to consider the factors in N.J.S.A. 2A:34-23(a) to arrive at a child support award for that child. However, Appendix IX-A to the Court Rules directs that the Guidelines may be applied to students over 18 years old who commute to college from the custodial parent’s home, the rationale being that the custodial parent continues to incur the same expenses on behalf of that child as he or she did when the child was in high school.

The relatively recent case of Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012) discusses the reasons why we do not apply the Guidelines to children in college. The Court first noted that child support usually cannot be eliminated altogether when a child is in college, acknowledging the parent’s “possible continued need to maintain a local residence for a child who returns home from college during school breaks and vacations.” Id. at 121 (citing Hudson v. Hudson, 315 N.J. Super. 577, 585 (App. Div. 1998)). The Court next recognized the child support expenses that remain even when a child is away at college. These expenses include transportation (car maintenance and payments, gasoline, parking, public transportation); furniture (dorm set-up, small appliances); clothing; linens and bedding; luggage; haircuts; telephone; supplies (paper, pens, calculators); sundries (cleaning supplies, laundry detergent); toiletries (soap, shampoo, personal hygiene products); insurance (car insurance, health insurance, possible renter’s or personal property insurance); entertainment for events; and spending money. Id. at 121-22. While some of the above expenses are included in the Guidelines, many are not, which further justifies a child support award that is based not on the Guidelines, but on the child support statute. Id.

The Court noted that there are also expenses for which a child may be or should be solely responsible while in college. The trial judge should consider whether and to what extent, under the circumstances, a child should be responsible for some of his or her own expenses using summer wages, work-study payments or part-time employment. Id. Finally, the Court opined that “It also may be more appropriate for a parent to provide direct payments to the student for some of the child’s support needs rather than to the other parent. The fact sensitive nature of each of these determinations explains why the Guidelines are ill-suited to make such a support calculation.” Id.

Jacoby also affirmed that a parent’s payment of a child’s college expenses may constitute changed circumstances warranting a modification of child support. “The computation of child support cannot be made in a vacuum as there is a close relationship between college cost and support: the higher the child support order the less money remains available to contribute to college expenses.” Id. The Jacoby court found that defendant-father demonstrated a significant change in circumstances warranting a review of his child support not only because his income had allegedly been reduced by one-third, but also because the parties’ children were living away at college. Id. at 118.

9.Contribution to College and other Institutions of Higher Education: In New Jersey, divorcing or divorced parents may be compelled to contribute to their children’s post high-school ed Many parties include in their settlement agreements exactly how college contributions will be handled. However, when the children are very young at the time of divorce or when the parties are still divorcing at the time a child enters college, the issue of college contribution can be more complicated. Whether parents will be compelled to contribute and to what extent is governed by the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982). They are as follows:

  1. Whether the parent, if still living with the child, would have contributed to the costs of the requested higher education;
  2. The effect of the background, values and goals of the parents on the reasonableness of the expectation of the child for higher education;
  3. The amount of the contribution sought by the child for the cost of higher education;
  4. The ability of the parent to pay that cost;
  5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
  6. The financial resources of both parents;
  7. The commitment to and aptitude of the child for the requested education;
  8. The financial resources of the child (i. assets owned individually or held in custodianship or trust);
  9. The ability of the child to earn income during the school year or on vacation;
  10. The availability of financial aid in the form of college grants and loans;
  11. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
  12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

In New Jersey, the duty to pay for a child’s college expenses may extend beyond undergraduate college to graduate or other professional schools, depending on the specific circumstances of the case. In Ross v. Ross, 167 N.J. Super. 441 (Ch. Div. 1979), the trial court found that a 23-year-old daughter was not emancipated until she graduated from law school. The Ross decision was followed only three years later by the Newburgh decision, which authorized a court to make an award for the higher education of children of divorcing or divorced parents. Read together with Ross, the Newburgh decision applies not only to college expenses, but may apply to graduate college or professional school expenses as well.