New Jersey Family Law Blog

New Jersey, like most other states, takes the issue of child support seriously. There are processes in place to aid those seeking to collect child support and stiff penalties for those who fail to make their payments. If, after reading the following, you need a Hunterdon County lawyer to assist you with child support issues, contact The Rotolo Law Firm, located in Lebanon, NJ.

Ensuring the payment of child support is primarily the responsibility of individual states. The federal government, however, does provide financial support to state agencies entrusted with this job. In addition, legislation is in place prohibiting someone from using a bankruptcy filing to avoid child support obligations, and it is a federal crime to willfully avoid such payments by moving to another state. Still it is the state’s responsibility to enforce court orders, and even federal agencies are bound to comply with state-ordered child support payments. (1)

States have various means by which they can enforce payment of child support, including garnishment of wages or unemployment payments and liens on or the seizure and sale of property. Even Social Security payments, which are exempt from most garnishments, can be attached for child support payments. (2) While the Social Security Administration (SSA) is bound to comply with state-ordered child support payments, it is immune from suits for damages resulting from its failure to follow such orders. (3)

This immunity was upheld recently by a New Jersey appeals court in the case of Jacobson v. U.S., in which lawyers for the plaintiff claimed the SSA failed to withhold money from disability payments made to Steven Tetz in order to satisfy child support payments for which Mr. Tetz was in arrears. (3)

Mindy Jacobson sought and was granted child support from Mr. Tetz for their daughter in 1998. In 2004 a second order directing the garnishment of Mr. Tetz’s disability payments was issued by the Office of Child Support Division of New Jersey’s Department of Human Services. The SSA, however, failed to garnish any portion of a $58,948 retroactive disability payment made to Mr. Tetz in December 2007 claiming the agency never received the notice. At the time of Mr. Tetz’s death in March 2008, he was $79,546 in arrears on child support. (3)

Ms. Jacobson originally filed suit in federal court against Mr. Tetz’s estate and the U.S. government seeking damages for the SSA’s failure to comply with the state’s garnishment order. That case was dismissed without prejudice, allowing Ms. Jacobson to re-file at the state level. In December 2008, she filed a suit with the Mercer County Law Division and was awarded $43,894 in compensatory damages along with an additional $75,125 in prejudgment fees, attorney’s fees and related costs. The judge hearing that case found that sovereign immunity did not apply since the federal government failed to contest the charges. (3)

In an appeal heard earlier this month, the award was reversed on the basis that the action was prohibited because of sovereign immunity, which could only be waived by Congressional action. Judges hearing the appeal noted that while the federal Child Support Enforcement Act, passed in 1974, requires federal agencies to comply with garnishment orders, it does not hold those agencies liable for damages that may result from failure to do so. (3)

If you are involved in a child support issue in Hunterdon County, contact the family law attorneys at The Rotolo Law Firm.

(1) http://www.policyalmanac.org/social_welfare/child_support.shtml
(2) http://www.debtsettlementlawyers.com/resources/debt-settlement/debt-collection/new-jersey-wage-garnishment.htm
(3) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202519357662&slreturn=1

The $46,000 per month in child support supermodel Linda Evangelista is seeking from the father of her four-year-old son may raise some eyebrows.(1) After all, that’s more than some people earn in a year. And the recent court order requiring actor Mel Gibson to pay his ex $750,000 over five years to settle their bitter custody battle may stir similar reactions.(2) Although these high-cost celebrity cases may feel like revenge of a partner scorned, child custody issues are serious matters.

New Jersey considers all parents responsible for supporting their children, which means providing the basics of food, shelter and clothing. That responsibility does not end when a marriage dissolves.

Oftentimes couples get caught in a financial “catch-22” once they marry and have children. Now there are three or more mouths to feed. If both parents work, they incur the added expense of childcare. If one parent cuts his/her working hours to avoid the childcare expense, that parent's income is then lowered and there is less money to pay expenses. Finances are generally one of the major stress factors in marriage. Divorce doesn’t solve the problem either; rather, it can make financial problems worse, because after divorce there are two households to support in addition to the continued need to provide the basics.(3)

After divorce parents fall into the custodial or non-custodial category. The custodial parent is the one with whom the child(ren) spend most of their time; the non-custodial parent is the one responsible for paying support.(4)

When determining support amounts, courts consider several factors: gross income of each parent – including salaries, bonuses, tips, commissions, investment income, etc. -- and the expenses directly related to the care of the children, including daycare, clothing, food, and schooling. The courts also take into account the type of custody the parents have. This can either be shared or sole custody. Sole custody is determined when one parent spends less that 28% of overnight time with the children.(4)

In an ideal situation, couples will come to an agreement, known as a consent order, often with help from a mediator or hearing officer specializing in child support issues.(3) The State has developed guidelines to help reach that agreement. (See www.judiciary.state.nj.us/csguide/index.htm) If an agreement is not reached, the matter goes to a judge. And what the judge decides is law.(4)

If you find yourself in need of a New Jersey divorce attorney that specializes in child support, contact The Rotolo Law Firm. The Rotolo Law Firm family law attorneys will work hard for you.

(1) http://latimesblogs.latimes.com/gossip/2011/08/linda-evangelista-child-support-salma-hayek-husband.html

(2) http://www.swrnn.com/2011/08/31/mel-gibsons-divorce-settlement-details-released/

(3) http://www.njchildsupport.org/Article.asp?AID=97

(4) http://www.njchildsupport.org/Article.asp?AID=174

Issues of privacy between parents and children can be very sensitive matters, with parents trying to balance their desire to support and protect with their children’s rights. Sometimes, however, a parent’s right to know can supersede the child’s privacy rights, as illustrated in the recent New Jersey case of Van Brunt v. Van Brunt.

The question in that case came down to whether children can both evoke their right to privacy under the Family Education Rights and Privacy Act (FERPA) and claim entitlement to child support and financial assistance with their education. The court’s answer essentially was no.

The Van Brunts are a divorced couple who have joint legal custody of their two children. Under terms of their divorce, Mrs. Van Brunt was named primary residential parent and Mr. Van Brunt was ordered to pay child support, including contributions towards the children’s college expenses, until they become emancipated. The children would not be considered emancipated, according to the agreement, as long as they were enrolled in a full-time, four-year academic college program. (1)

At one point Mr. Van Brunt filed a motion seeking disclosure of his oldest child’s college records verifying her status as a full-time student. The court ordered release of this information and Mrs. Van Brunt initially failed to comply. Mr. Van Brunt then filed a motion for emancipation of his daughter, who was over 21 at the time. (2)

Mrs. Van Brunt eventually released some of the requested information but claimed that obtaining it was a violation of her daughter’s privacy rights under FERPA. The court disagreed saying, in essence, that if Mrs. Van Brunt did not have enough influence over her daughter to comply with the court order, then perhaps the daughter could no longer be considered unemancipated. (2)

FERPA prohibits colleges from divulging student information to third parties without the student’s written permission, but the court pointed out that such permission is not required when the information is needed to comply with a court order. (3)

According to the court, college students cannot have it both ways. In other words, the Van
Brunt’s daughter cannot keep her college records private from dad and still demand his financial support of that education.

The court further ruled that while the daughter would not be ordered to release her college records, failure to do so could lead to her emancipation. (1)

(1) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202490662205&slreturn=1&hbxlogin=1
(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202490678333
(3) http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Anyone who has ever watched a TV police drama is familiar with the line “. . . You have the right to speak to an attorney . . . If you cannot afford a lawyer, one will be provided for you at government expense.” (1) The question currently being considered by the U.S. Supreme Court is whether this right, which usually pertains to defendants in criminal cases, should be extended to include defendants in civil cases, specifically child support matters. (2)

The particular case under consideration involves a South Carolina father who has been held in civil contempt on several occasions and sentenced to as much as one year in jail at a time for failure to make his child support payments. (2)

Since 1963, the Supreme Court has held that people facing incarceration must have the opportunity to be represented by an attorney. People who cannot afford an attorney are provided with one. That ruling, however, was tied to the Sixth Amendment and only related to criminal proceedings, not civil matters. Still, a number of states, including New Jersey, make provisions for impoverished people in child support cases. (2)

Back in 2006, the New Jersey Supreme Court ruled that all parents facing possible jail time as a result of violating court-ordered child support payments must be told that they have a right to legal counsel. Low-income parents must be informed that they have the right to have a lawyer appointed to them. If not so informed, the court cannot use the threat of jail against the defendant in those proceedings. (3)

The question before the U.S. Supreme Court now is whether this right should be extended nationwide. One of the problems, the Court noted, is where to draw the line. If this right was granted to defendants in child support cases, what would prevent it from being applied to other civil cases, including alimony, or even immigration and extradition issues. It was also noted that in some states, like New Jersey, the expense for providing legal counsel for indigent defendants may become cost-prohibitive, preventing those states from pursuing collections of child support diligently. (2)

It could be sometime this summer before the Supreme Court issues a ruling on this matter. (4)

(1) http://www.usconstitution.net/miranda.html
(2) http://www.nytimes.com/2011/03/24/us/24scotus.html
(3) http://www.lsnjlaw.org/english/family/childsuport/csenforcement/
(4) http://www.npr.org/2011/03/23/134736601/supreme-court-weighs-rights-of-deadbeat-parents

Efforts by the 21 sheriffs’ departments throughout New Jersey resulted in the arrest of some 953 people on charges of failure to pay child support. Those arrested owed over $14 million in combined child support payments. As of December 10, the State had collected about $233,000 or that amount as a result of the arrests. (1)

This three-day sweep was a cooperative effort by New Jersey’s Child Support Services and the State’s Sheriffs Association to ensure that non-custodial parents abide by the court ordered child support payments. These sweeps seek out both parents who are in arrears on their child support and those who neglect to attend court hearings to set up medical and/or support payment schedules. (2)

New Jersey’s Child Support Agency is entrusted with ensuring that child support payments are made in accordance with court orders. The Agency uncovers incidents of non-payment or late or partial payment of support and takes action to rectify the situation. Those actions can include, but are not limited to, withholding income, seizing assets such as lottery winnings and/or settlements or awards resulting from civil suits, and offsetting tax refunds. (3)

In addition, the Agency has the authority to report support payment arrears to credit agencies; call for the suspension of licenses, including drivers’ licenses, occupational or professional licenses, and sporting and recreational licenses; and deny issuance of passports. Further actions could include issuance of warrants and judgments seeking satisfaction of the delinquent payments. (3)

To ensure that each child gets what he or she is entitled to, the State conducts these sweeps on a biannual basis. (1)

(1) http://www.dailyrecord.com/fdcp/?1292069810148

(2) http://www.nj.com/news/index.ssf/2010/12/nj_sheriffs_pull_in_nearly_100.html

(3) http://www.njchildsupport.org/Article.asp?AID=50

Child support is a court-ordered payment made by the non-custodial parent to help with the expenses of raising the child. It helps to assure that both parents retain responsibility for their children and that children do not suffer financially from the divorce of their parents.

Laws regulating child support payments vary from state to state; New Jersey has some of the strictest child support laws in the country.

In calculating the amount of child support payments, several factors are taken into consideration, including the fair income of each parent. This includes all wages, overtime, unemployment benefits and even lottery winnings. Also considered are the taxes and deductions taken from these wages. Only mandatory deductions, such as income taxes are counted; however, voluntary deductions are not. (1)

If both parents’ earnings are equal, child support responsibility is usually split 50/50. That ratio changes if one parent makes significantly more than the other. Once all income and deductions are calculated, the court issues a final support order. Unfortunately, there are many times when these orders are ignored. (1)

New Jersey law allows wages of the non-custodial parent to be garnished for the payment of child support. It also allows for the suspension of driver’s and professional licenses if the child support payments are in arrears. (2) The State has an annual 63.5% child support collection rate, compared with a 62% national rate. One tactic that makes it more difficult to collect child support payments is when the non-custodial parent moves out of state. It is estimated that this affects at least one-third of New Jersey child support cases. (3)

A new bipartisan bill was introduced recently that would help custodial parents collect support payments even when the non-custodial parent is living in another state. This new law, sponsored by Senator Robert Menendez (D-New Jersey) and Senator Chuck Grassley (R-Iowa), would establish consistent rules for enforcing child support orders across state borders and accelerate those payments to children living in other states. (3)

Under the pending legislation, states would be required to take part in a lien registry. This would ensure that all income, including insurance and legal settlements and lottery winnings is taken into consideration to meet child support obligations. (3)

(1) http://www.njchildsupport.org/article.asp?aid=95
(2) http://www.child-support-laws-state-by-state.com/nj-child-support.html
(3) http://blog.nj.com/njv_editorial_page/2010/10/child_support_law_helps_bring.html

Supporting a child is an important role a parent and/or a guardian play in a child’s life be it emotional or moral support and certainly, as any parent can attest, monetary support. However, in the case of a family that is no longer intact, monetary child support often is lacking because of the untimeliness of child support payments. Approximately 38% of child support providers are responsible for medical bills, health care, and various other health care costs of the child so it is important that child support is paid on time. (1)

Unfortunately all too often the non-custodial parent falls behind in child support payments.

Continue reading "Child Support Roundup in New Jersey" »

Parties’ daughter was killed in an automobile accident on October 6, 2007. On January 10, 2008, the plaintiff filed a pro se motion seeking, inter alia, to reduce child support. The plaintiff argued that any modification should be retroactive to the date of the daughters death, while the defendant posited that the filing date of the plaintiff’s motion should go

The applicable law is N.J.S.A. 2A:17-56.23(a), which basically states that child support can not be made retroactive and will only be permitted from the date of the filing of the motion.

The issue here was whether child support is to be amended on the date of the child’s death or the filing date of the motion. There have been several scenarios where the courts have granted retroactive modification to child support. In the case of Keegan v. Keegan, 326, N.J. Super. 289, 741 A.2d 134 (App. Div. 1999), trial court granted a retroactive increase in the aspect of child support. Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App. Div. 1999), dealt with the issue of retroactive modification of an obligor who was incarcerated for an extended period of time

The most analogous case to the one at bar was Mahoney v. Pennell, 285 N.J. Super. 638, 667 A.2d 1119 (App. Div. 1995), dealt with whether retroactive modification was permissible in the event of an emancipated child. The court said, “we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.” Id. at 643.

The court in this case said that upon the death of the parties’ daughter, the duty to pay support for her ceased. To bar retroactive modification would be to punish financially an obligor who has thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place before seeking redress in court.

Accordingly, this court found that N.J.S.A. 2A:17-56.23(a) does not bar the modification of child support retroactive to the date of death of any of the parties’ children.

New York Times
By: Julie Bosman

The same story echoed a dozen times through Room E8 of Manhattan Family Court in a single day: fathers, pinched by the recession, pleading for a reduction in child support.

A salesman at Saks Fifth Avenue who is estranged from his teenage daughter said he feared he would be included in the next round of layoffs expected at his store.

A man who had been laid off from a factory said he managed to find work at Mets games, but for less pay, $9 an hour. Another man, on the verge of eviction, begged for a break from his $315 monthly payments.

“Last week was my child’s birthday, and I couldn’t get him a present,” he said, burying his head in his hands. “This is killing me.”

Since January, Family Court in New York has been filled with urgent requests like these, alarming judges and overwhelming calendars with what are known as modification cases.

Continue reading "Fighting over Child Support After the Pink Slip Arrives" »

“[A]ny party is free to retire, take a vow of poverty, write poetry, or hawk roses in an airport, if he or she sees fit. The only limit is discontinuance of the financial aid the former spouse requires. The reason for this is that the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed.” Deegan v. Deegan, 254 N.J. Super. 350, 358-59.

Continue reading "Demystifying the imputation of income." »

A three-judge Appellate Division panel recently ruled out binding, nonappealable arbitration as a way to settle custody and parenting time disputes. Arbitration is a favored remedy for settling disputes, but parties can’t bargain away the court’s obligation under the principle of parens patriae to ensure the best interests of children, the appeals court said.

Continue reading "No Binding Arbitration of Custody or Parenting-Time Issues, Court Says" »

Let's say you and your ex have an agreement, whether verbal or written, that you will pay to your ex $300 in child support, when according to the Guidelines, you should be paying $800. Well, this is obviously agreeable to the payor.

Your obligation will certainly change if your ex becomes a recipient of TANF, i.e. welfare. TANF stands for Temporary Assistance to Needy Families.

Continue reading "In New Jersey a Child Support Agreement that Deviates from the Guidelines is Superseded by the State when the Payee is a Recipient of TANF" »

Hamilton v. Mamroud, N.J.Super.A.D. 2007(unpublished opinion).

The parties had one son together. They divorced agreeing to joint custody with mother having primary residence.

Eleven years after the divorce, in November of 2001, the Middlesex County Board of Social Services notified both parties that either could seek a review of child support. The mother notified the board that she was interested in the review.

Thereafter, the father was notified by the Board that it was gathering his financial information from his employer. The board filed a motion to increase support on November 7, 2003, and then again on November 25, 2003 asking the court to make the increase retroactive to November 25, 2001(the date of the original notice).

Continue reading "New Jersey Court Orders Retroactive Increase in Child Support Where Motion was Never Filed" »

On April 26, 2007, Bobby Brown filed a lawsuit against ex-wife Whitney Houston in an attempt to change the custody terms as to their 14 year-old daughter, Bobbi Kristina. In addition to the shared custody, he is seeking child support and spousal support. A court date has been set for June 15, 2007.

Continue reading "Custody Battle – Bobby Brown Sues Whitney Houston" »

In New Jersey, someone other than a child's biological parent can be responsible for making child support payments.

Specifically, under the doctrine of equitable estoppel, persons who are not the natural parents may have an obligation to support those children as to which they are in loco parentis. Ross v. Ross, 126 N.J.Super 394 (J. & D.R. Ct. 1972).

http://www.childsupportweb.com

Continue reading "New Jersey Child Support: Who Pays?" »

Shortly after the distressing news of Anna Nicole Smith’s demise, the fight for baby Dannielynn continued on a shocking upward spiral. The potential father list has risen from two to five!

As previously known, Howard K. Stern and Larry Birkhead were the alleged contenders. The paternity test was postponed from January until February 2007.

However, a strange turn of events has since occurred. Two additional men are contending to be Dannielynn’s father; the bodyguard, Alex Denk, and the prince/Zsa Zsa Gabor’s husband, Prince Frederick Von Anhalt. Additionally, Ms. Smith’s sister alleged Ms. Smith had her late 89-year old husband/billionaire oilman, J. Howard Marshall’s sperm frozen, which has been added to the equation.

Continue reading "Custody Battle Continues -- Anna Nicole Smith's Daughter, Dannielynn!" »

http://www.childsupportweb.com

Does it sound reasonable for a parent to seek a downward modification of his/her child support obligation when he/she has substantial assets sitting a 401(k) account that are not considered in the child support calculation? What about the child's right to financial support?

A party's contribution into a 401(k) account and the income generated in a 401(k) are not used in the child support calculation as it is not considered available to the defendant over an extended period of time. The assets are not ordinarily accessible and the party withdrawing from the account would face an exorbinant tax burden for withdrawing money prior to retirement.
Forrestall v. Forrestall, 389 N.J.Super. 1, 910 A.2d 621 (2006).

Continue reading "Child Support & Your 401(k) " »

So, you don't want to pay child support anymore. What do you need to know?
To start, you should ask yourself the following questions:

1-How old is your child?
2-Does your child attend high school?
3- Does your child work? Full-time or Part-time?
4- Does your college attend college?
5- Does he or she reside with your ex-spouse?

The answers to these questions will determine whether you should file a motion for emancipation.

Continue reading "New Jersey Emancipation" »

As as initial matter, it is important to note the New Jersey court system encourages parties to a divorce to settle. The Courts prefer when parties can resolve financial and custodial issues without judicial intervention. The terms of settlement are embodied in a Property Settlement Agreement, also known as a Marital Settlement Agreement.

Oftentimes, a party files a motion for modification of a specific term in the property settlement agreement. New Jersey Courts permit this. The Courts allow parties to file post-judgment (post-divorce) motions for modifications of property settlement agreements (contracts).

In this respect, the contract, property settlement agreement, is treated vastly different in the family context than in a business or employment context. In the latter, there is very litttle room for change.

Continue reading "Lepis and Anti-Lepis Clauses Defined" »

Let's face it - sometimes non-custodial fathers are delinquent in their child support payments. What is a custodial mother's recourse? Perhaps, the custodial mother can call the probation department or file a motion to enforce litigant's rights. There are many ways to enforce support orders and/or agreements.

May the custodial mother prevent her ex from seeing his children? Quite simply, the answer is 'no'.

Make no mistake about it, a father's refusal to pay child support is frowned upon. However, it is not up to the custodial mother to decide in what manner to best enforce support, especially if the actions affect children. This issue should be handled by the Courts.

Continue reading "New Jersey Child Support and Visitation: Is There a Connection?" »

In New Jersey, inheritance is viewed as separate property and is not subject to equitable distribution irrespective of when the inheritance is received. Nonetheless, inheritance can play a major role in assigning child support and alimony obligations. Keep in mind, inheritance monies should never be intermingled with joint assets. Always keep your inheritance separate from joint assets to avoid it being subject to equitable distribution.

For example, if the payee has stayed home to raise children and tend to the home, she (typically') may not receive all she believes she is owed if she has inheritance monies. The fact that inheritance cannot be divided between the parties, does not prevent the interest earned from investing the inheritance being calculated into support obligations. By this, the payee may actually become a "payor" as well, and be forced to contribute to her support or the support of her children through the interest received on her inheritance.

Continue reading "Support: Using Interest Earned from Inheritance in Calculation" »