In New Jersey, the court will most often look at the Child Support Guidelines to determine the amount of child support to be paid by one or both parents for the benefit of the child. There are, however, many child support-related issues parents may face during and after a divorce that require the advice of an experienced attorney. Abigale M. Stolfe – a Toms River family lawyer – answers some of the most common questions divorcing couples have when child support must be paid, including: how does a judge determine child support in high-asset cases; can child support be changed; if an ex-spouse remarries, can the payor spouse stop making payments; and can divorcing spouses agree that neither will pay child support.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Abigale M. Stolfe, Family Lawyer
Abigale M. Stolfe is a family lawyer based in Toms River, New Jersey. As a partner at Stolfe Zeigler, a boutique family law firm, Abigale vigorously pursues creative, fair, and flexible solutions to divorce-related children’s issues, while protecting your and your children’s best interests. She has had numerous cases cited by judges in published opinions, which demonstrates her knowledge, skills, and ability to win cases.
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Read the Transcript of this Podcast Below.
What are the child support guidelines, and are they meant to cover all expenses related to children in New Jersey?
The child support guidelines are a result of research that was intended to determine the average cost to raise a child in an average economic family or an average economic circumstance. When we look at these child support guidelines, we rely upon them to determine the correct amount of child support to be paid by each parent for the benefit of the child. Those guidelines include a percentage for housing, utilities, transportation, food, clothing, uncovered medical expenses of up to $250 per year per child, makeup, hair products, toiletries, extracurricular activities with third exceptions, shoes, outerwear – everything you can think of for your child is typically incorporated into the child support guideline.
There are some exceptions, such as footwear for sports, that are not considered in the child support guidelines. For example, if you’re buying cleats; that’s not in the guidelines, but the registration for baseball will be. The reason we try to use child support guidelines in most cases is because the guidelines take into account the majority of the middle class families in the state. There are exceptions, if you have a special needs child, for instance, who have tremendous medical expenses that are not anticipated by the guidelines.
If you’re each earning a $100,000 a year, you would be subject under the rule to the child support guideline, in which case we would put in each of your incomes, we would take out your deductions, and the calculator would give us a child support amount. However, if you’re each earning a $100,000 a year, but you have a special needs child who has a tremendous amount of educational expense, then it might not be appropriate to use the child support guideline. Or it might be appropriate to use the child support guideline, and then add to that basic child support number to encompass all the additional expenses which can be recurring and anticipated. But generally speaking, there is a child support guideline in the State of New Jersey that will be utilized to determine what the weekly child support amount is going to be from the non-custodial parent to the custodial parent.
How does a judge determine the amount and duration of child support in a high-asset case?
In the case that falls outside of the guidelines, the court would look at NJ 2A:34-23a. And those factors would determine what amount of child support will be granted outside of the guidelines. We’d look at the needs of the child, we’d look at the standard of living and the economic circumstances of the parents, all sources of income and assets of both parties, the earning ability of both parties which would include their educational background, their training, skills, work experience and the custodial responsibility that they have for the child. We’d look at the need and capacity of the child for education including higher education – do they go to private school for instance, the age and health of the child in each parent, the income assets and earning ability of the child – if you have a child who is. let’s say child actor – and they’re generating their own income, where is that going and how is that being utilized to offset some of their expenses. The responsibility of the parents for court ordered support of others; they could have another child, they could have an elderly parent. We have to look at those factors as well. We’d also look at the debts and liabilities of the parties.
How this works in real life is that when you have high income earners, typically we break their budget into two components. Number one, is their expenses, let’s take a typical example: Dad is working in New York, Mom is staying home with the children, and the children go to private school and have all these activities. They do horseback riding, they do rowing, and they have a tremendous number of activities. We may look at what was the lifestyle of the marriage which was Mom, Dad and the children. Then we would have mom breakout a budget which will be just her budget. What does she need for housing? What does she need for restaurants? What does she need for food? And this is only be for mom. Then we would break out a separate budget for the children. How much is it to do rowing each year? How much is it to do the horseback riding each year? How much is it for the private school each year? Is there a whole life policy associated with the children? How much is the whole life policy? And what are we going to do with the benefit of that policy, meaning the cash value attributed to the policy?
By creating these three separate budgets, what we’re able to do is we’re able to look at not only what the child support component would be, and define the child support component, but also define the alimony component assuming there is an alimony obligation. This allows us in creating an agreement that sets for a very specific timelines associated with each person named in that family, because child – the oldest daughter Susie may be 13 and rowing and going to private school, but we know that’s only going to last for five years until she goes off to college. And then we have to have a whole other review for the college period. We could have very defined expenses and defined periods by breaking out those three separate budgets.
Once the amount and duration of child support has been set, can either be changed for any reason?
Both custody and support are always an open door. Always remember, anything related to your child can always change. We do have to show a change in circumstance, but that’s not such a difficult burden when we’re talking about a child related expense.
The term of child support can change, for instance, if the child goes from living with mom to living with dad. That would change the payor as well as the amount and term. If the child goes from living at mom’s house to going to a full-time boarding school, that would change the amount of the child support.
Duration doesn’t typically change, because we would pay till at least the child is 18 years old. But then if they went to college, that child support would continue at some level and to some degree past the time that they’ve turned 18, and that will be a whole other series of factors we would consider.
If a child-support recipient remarries, can the ex-spouse stop making child support payments?
When your spouse remarries, your obligation to your children continues. The new spouse is not responsible for the payment of your child’s expenses. You may not stop paying support due to your spouse’s remarriage.
Can someone reduce his or her child support payments if their child is staying with them for an extended period, during summer vacation for example?
During the period of time when a court has ordered child support, a party may not unilaterally or on their own decision stop or modify their support obligation. They can only do that by a written agreement of the two parties, meaning a document that both parties have signed, preferably in the presence of a notary, or with a court order, meaning that one party went to court and asked for a reduction – whether it’s a long-term reduction or a temporary reduction. And only then with that court order could they reduce their support.
If the payor is constantly late or short with his or her child support payments, what can the recipient do to ensure receipt on time and in full? Can the custodial parent withhold visitation until he or she receives payment?
If child support is not being paid, the recipient. meaning the person receiving the support, has the right to ask the court by way of a motion to open a probation account, and then probation would collect by wage execution or perhaps through a tax return levy, or through whatever source they could the amount that’s due in owing. Child support and and parenting time are not interrelated. It will be not in the best interest of a child to be withheld from having time with their non-custodial parent especially over financial issues.
Can divorcing spouses agree that neither will pay child support to the other?
Neither party has the right to waive child support since child support is the benefit of the child, meaning the child owns that right. However, there is case law which provides that the parties can take on the other party’s responsibility for support. Let’s use an easy example: if Dad is a Wall Street executive and he is going to have primary custody of the party’s children, then Mom would have a very de minimis child support obligation. The parties can agree that dad would take on mom’s financial burden. Now at any point the parties can, if they’ve waived support, go back to court and ask the court and ask the court to enter a support award because it is the right of the child.
How can a custodial parent collect child support if their former spouse lives in a different state?
Once New Jersey has entered a child support order, any state within the United States will enforce that order under the Uniform Interstate Family Support Act, also known as UIFSA. If New Jersey enters a support award and the payor parent is not making the payments that they’re supposed to make, the recipient can go down to their county court, file a petition under UIFSA, then UIFSA will contact the payor’s state. Let’s say we’re talking about New Jersey and Florida. If mom lives in New Jersey and she went to the courthouse and asked for a UIFSA enforcement, then New Jersey would contact Florida and ask Florida to enforce the order. A UIFSA officer will then be assigned to the case and they would enforce that order through Florida.