When is a Child Emancipated?

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Most Property Settlement Agreements entered into between divorcing parties deal with the issue of emancipation of a child, which is the cut off date for a parent’s child support obligation. Intertwined with this issue is college or secondary education and each parent’s responsibility toward this obligation.

In New Jersey, there is no set age for emancipation. Many people seem to think that a child is emancipated when he/she reaches the age of majority which is 18, but in most cases this is not true.
The Superior Court of New Jersey has stated that “When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated.”

Since the issue of whether a child is emancipated is fact sensitive, it is essential that your Property Settlement Agreement have a definition of emancipation so there is no question when child support obligations stop. Property Settlement Agreements traditionally list the following as emancipation events:

1. Reaching the age of 18 years or the completion of post-secondary education (college), whichever occurs last.
2. Marriage of the child.
3. Permanent residence away from the parent’s residence, except that residence at boarding school, camp or college shall not be deemed a residence away from the parents.
4. Death of the child.
5. Entry of the child into the armed forces.
6. A child obtaining full time employment after attainment of the age of 18 years, except that a child engaging in full time employment during vacation or summer periods while attending high school, college or other post-secondary education on a full time basis, shall not be deemed full time employment.

Issues arise, even with a definition of emancipation such as this, when a child works full time and goes to school full time. In a recent case, a father filed a motion to emancipate his son and terminate his child support obligation. The mother opposed the motion and filed a cross-motion requesting that the father be required to contribute toward their son’s college education expenses. The parties’ Property Settlement Agreement provided that the father pay child support for the minor child until he was emancipated, which was defined by the parties as set forth above. The parties’ Property Settlement Agreement also stated that if the child was a full time matriculated student enrolled in a minimum of 10 credits per semester, the parties would proportionally share the educational costs after financial aid, scholarships and tuition assistance.

In this case, the son worked at an office full time during the day and went to college in the evening taking 12 credits per semester.  Although the Property Settlement Agreement did not address full time employment while going to school full time, the Lower Court continued child support and compelled the father to pay toward his son’s college education expenses.

On appeal, the Appellate Division agreed with many of the father’s arguments and found that he was entitled to (1) confirmation as to the number of credits his son was taking at college, as well as his future college plans, (2) disclosure and documentation of his son’s income and savings in order to ascertain whether his son contributed toward household expenses or paid his own expenses, (3) the financial status of both parents and (4) whether scholarships or other financial aid was available. The Appellate Division determined that a plenary hearing was necessary in order for the Lower Court to determine the issues of emancipation, child support obligations and each parent’s responsibility toward college expenses. It is clear from this case that even an attempt to define an emancipation event in a Property Settlement Agreement is not always successful and parties to a divorce action should pay particular attention to the wording of any agreement entered into in order to state with specificity the parties’ intent by covering all conceivable bases.

Issues which may come up in post-judgement divorce cases may be (1) the parents’ obligation to pay for graduate school (2) the parents’ obligation to continue child support and college education for a period of more than four years, (3) whether child support continues if a child takes a leave of absence or other break from school before resuming his/her studies and (4) whether child support continues if the child is ill (physically or emotionally), and therefore cannot attend college.

Dealing with these issues at the time a Property Settlement Agreement is entered may save an inordinate amount of time and money in the future.

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Comments (8) Read through and enter the discussion with the form at the end
Lee - April 10, 2007 1:45 PM

What are the chances that a pro se motion for emancipation of a child (age 23)who is graduating with a BS in May, plans to go to graduate school and lives with her mother will be granted? The college costs for the BS are paid for and the child is now able to obtain full time employment.The original judgement did not call for specific terms of emancipation.

Maria Imbalzano - April 11, 2007 11:27 AM

The court must look at several factors to determine if a child is emancipated. With regard to graduate school, the court will want to know if his/her parents have a graduate education, whether a graduate education would be provided if the parents were still together, whether your child will be going to school full time or part-time, the costs, whether a graduate school education was anticipated by parties in the past, whether your child is eligible for scholarships, grants, loans, etc. My advice would be to file the motion. If you are doing it pro se, you don't have anything to lose.

SUSAN TOMASSETTI - April 28, 2007 7:38 PM

Regarding child support, what if the child lives in a different state than the father? What state law is used for emancipation?

Also are child support laws different if there was never a marriage between the parents?

elizabeth - April 30, 2007 2:13 PM

If the parent is already paying for fall and spring semester college tuition. Can the court obligate him obligated to pay for summer tuition as well?

Maria Imbalzano - May 3, 2007 11:09 AM

Emancipation is generally based on laws of the state where the child lives unless the initial child support order was in a different state (where the child lived previously) and the child support order or agreement states that that particular state's laws shall apply. It would generally not be based on laws where the non-custodial parent lives, if the child doesn't live there or didn't live there at the time of the initial order.

There is no difference in child support if the parents aren't married.

Maria Imbalzano - May 3, 2007 11:27 AM

In general, parents are responsible for their children's college education. Every case is fact sensitive. I don't know the facts of your case or why your child may be going to school over the summer. If he/she will graduate earlier by taking summer classes, it can only help the parents who will stop paying sooner, if he/she graduates sooner. If the child failed a course and needs to take it over, a court may not be so sympathetic. Other factors go into who pays and how much - the incomes of the parties, the tuition costs, whether the child is working to contribute, whether the child is eligible for loans, grants, scholarships etc., etc.

Lisa - June 5, 2007 5:23 PM

If a child is living away at college and not with the custodial parent, is support still paid to the custodial parent or can it be paid directly to the child?

Maria Imbalzano - June 6, 2007 1:34 PM

Lisa,

It should be paid to the custodial parent.

Best of luck,

Maria

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