If you have children and are currently considering or experiencing a divorce, then the New Jersey child support guidelines will affect the final terms of your divorce agreement. Find out what factors New Jersey courts consider when calculating child support and deciding whether you are eligible to receive or responsible to pay child support. Bradley Beach family lawyer Brian Winters discusses child support determinations, modification, and enforcement.
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Divorce Magazine Podcast: Understanding New Jersey Child Support Guidelines & Enforcement
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyer – Brian D. Winters. With more than 20 years of experience in family law, Brian Winters is certified by the Supreme Court of New Jersey as both a matrimonial attorney and a mediator. A partner at Keith, Winters & Wenning, LLC in New Jersey, Brian provides professional and knowledgeable counsel to divorcing individuals. For more information about Brian or his firm, please visit www.kwwlawfirm.com.
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Read the Transcript of this Podcast Below.
What are the child support guidelines in New Jersey?
In New Jersey, the child support guidelines are a schedule of suggested child support awards based upon each party’s income and other considerations, including the number of children.
Are the child support guidelines intended to cover all costs related to children or just the basic expenses?
The child support guidelines are based on economic studies conducted by experts, which try to predict how much money is necessary to maintain the same sort of lifestyle the child enjoyed during the marriage given each party’s respective incomes. The child support guidelines are meant to cover most, but not all, of the child’s needs. Certainly they are meant to cover food, shelter, transportation, and other necessary expenses, but not necessarily extracurricular costs, private school costs, or college costs.
Some parents and/or children may view certain child-related costs as being as necessary as food and shelter. If both parents agree the additional costs are necessary, can they negotiate using a pro rata approach to paying for the expenses?
Divorcing couples often squabble about this very issue. It is true that custodial parents often consider costs that are technically outside of the child support guidelines to be necessary costs that both parties should contribute toward. Typically, negotiations occur whereby the parties agree to pay costs that are over and above the child support guidelines – for example, the cost of summer camp – on a pro rata or proportionate basis. In order for such costs to be incurred and therefore reimbursable, both parties must agree as to the necessity of said costs.
What factors are considered in determining who must pay child support? Is the decision based on a mixture of factors?
The child support guidelines take a number of factors into consideration, including the respective incomes of the parties. Another significant factor is where the child resides and how many overnights the child spends with each parent. If the visitation schedule works on an every-other-weekend basis, then the noncustodial party might only have the child for 52 overnights per year; however, if the parties agree to a more shared parenting relationship, then the noncustodial party might have the children much more often.
The time spent with each parent is a factor and the income is a factor. An appropriate child support figure is derived once all of the various factors are calculated, including who pays for health insurance, who pays for daycare costs, and tax considerations.
Can a payor spouse reduce or eliminate his or her child support obligation if the child stays with him or her for an extended period of time, such as a summer vacation?
Pursuant to the New Jersey child support guidelines, there is a provision which holds that spending an extended period of time with a parent who is otherwise the noncustodial parent, perhaps a month during the summer, would warrant an abatement or suspension of child support during that time period.
Can the payor spouse stop paying child support if the recipient spouse refuses to allow court-ordered visitation?
No. In New Jersey, as in other states, child support is completely separate from parenting time. A person must pay child support regardless of whether the other party is behaving correctly or incorrectly with respect to parenting time, either permitting parenting time or disallowing parenting time. Child support obligation is independent.
Can a parent’s paycheck be garnished for child support payments? What options are available if someone is not paying their court-ordered child support?
The starting point in most cases is that a child support payor’s paychecks are garnished. Moreover, if they’re behind in child support, their income tax refunds can be captured. There are other remedies the court can put in place, such as passport suspension, license suspension, and even incarceration if the person refuses to pay child support. However, if a person owns a business or is paid as a consultant and there is no pay stub necessarily, then there can be no garnishment. In those cases, payments are made to the New Jersey Family Support Center, which used to be called the Probation Department and can enforce the child support obligation.
What if someone is genuinely struggling to meet his or her child support obligations? Is it possible to revisit a child support agreement if there’s been a significant change circumstances, such as a job loss?
Yes. If someone’s situation changes significantly and with some permanency, whether by a loss of employment or a loss of income in some other respect, then he or she can petition the court to modify child support based upon the change. However, the change must be indeed significant; it must be a significant increase or elimination of income and it must be permanent or long-term. Temporary loss of income or a temporary decrease in income will not suffice.
Can a former spouse avoid paying child support by filing for bankruptcy post-divorce?
No. Pursuant to the bankruptcy law, a domestic support obligation such as child support is not dischargeable in bankruptcy. A person cannot in any way be relieved of a child support or alimony obligation based upon a bankruptcy filing.
Can child support include an annual automatic increase for inflation?
There is already a bi-annual review for a cost of living increase built into child support, a so-called COLA increase. The increase is perhaps a few dollars for every two years. However, the parties can negotiate a review or a built-in increase on an annual, bi-annual, or tri-annual basis if they so choose. It is typically beneficial to both parties to build in a review of child support every two or three years to account for anticipated changes in circumstances.
Children often seem to cost more as they get older. Can child support be increased if the child needs expensive sports gear or tutoring, for example?
Interestingly, the child support guidelines are built in such a way that teenagers are entitled to more child support than younger children. There’s a basic child support amount, but the support award is increased by 14.6% for teenage children. This is to take into consideration the fact that they are older and consume more of everything: food, electricity, and financial resources by way of automobile expenses and tuition. However, with respect to private school tuition and auto expenses, those costs are typically outside of the child support guidelines and must be determined between the parties as to their proportionate responsibilities.
Can someone collect child support even if his or her former spouse has moved to another state or country?
Yes. It has become more feasible in recent years. In the past when someone moved to a different state or country, collecting child support was very difficult, but now we have statutes that require the states to co-operate with one another. Also, with the advent of our advanced technology, child support is more easily correctable in an outside jurisdiction. There are collection efforts, such as the capture of one’s income tax returns and suspension of one’s passport, which are federal enforcement measures and cut across all states of our union.
Is there a difference in the tax treatment of child support and spousal support?
Child support is not taxable, which means the recipient of child support does not pay tax and the payor does not receive any tax benefit. Alimony is just the opposite: the payor of alimony does receive a tax benefit, deductible to that party and their tax returns, and the recipient does pay tax on the alimony received.
What is there to stop someone from claiming that all of their payments are alimony and none of their payments are child support in order to get the tax benefits?
The breakdown of child support versus alimony must be specifically spelled out in the parties’ judgement of divorce or in a property settlement agreement. Typically, it is the attorney who must ensure those payments are specifically delineated as either alimony or child support; or if the matter is determined by a judge, then the judge will say if a certain payment is child support or alimony.
The problem occurs when someone wrongfully states that the payments are all child support or all alimony to receive some sort of tax benefit. The federal or state government would determine that there is a problem based on the inconsistent filings between the former spouses, in which case there would be audit. Ultimately, the terms of the judgment of divorce will govern which payments are alimony and which payments are child support.