In 2014, the New Jersey divorce statute, NJSA 2A: 34-23 as it pertains to the issue of spousal support or alimony was substantially modified. One such modification dealt with the vexing question of what the duration or term of the obligation to pay alimony should be. While a prior amendment to the statute had afforded courts the ability to award “limited duration” alimony, the lack of specific standards of under what circumstances this would apply, or for how long, versus an awarding of “permanent” alimony, led to divergent interpretations and applications by the courts. The Legislature sought to bring clarification to this issue when it included the following language to NJSA 2A: 34-23(c):
“For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.”
Hence, for a marriage of over 20 years, the duration of a possible alimony award was left “open”, and subject to the discretion of the trial court, applying the statutory factors and other legal principles to the facts and circumstances of a given case. Hence the development of what has been come to be known as “open duration alimony” for marriages in excess of 20 years.
Fast forward to 2017. That is the year that NJSA 2A:17-56.67 was enacted. Generally referred to as the “emancipation” statute, it essentially provided that a child support obligation would terminate at age 19 by operation of law, but which under limited circumstances could be extended but no longer than to age 23. And age 23 was the latest by which a child support obligation could be enforced by the probation department. However, a recent amendment to NJSA 2A: 17-56.67 effective December 2020 effectively extended, without any age limitation, an enforceable child support obligation in certain sets of circumstances, namely where a “child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent”. Hence, in these sets of circumstances, this recent change to the law has created what I refer to as “open duration child support”.
While most everyone referred to it as the “emancipation” statute, the statute, N.J.S.A. 2A:17-56.67, enacted in 2017, never used the term “emancipation”. Rather, the focus of the statute was the modification of existing law relating to the duration and termination of child support obligations. Under this law, the obligation to pay child support would terminate by “operation of law” and without order by the court on a date that a child marries, dies, enters the military service or reaches 19 years of age, unless (1) another age for the termination of child support is specified in a court order, but in no event beyond the date the child reaches 23 years of age, (2) upon written request seeking the continuation of child support beyond the age of 19 for a child (a) who was still enrolled in high school or other secondary educational program, (b) was a student in a post-secondary educational program enrolled for what the school considers to be full-time attendance during part of at least five (5) calendar months of the year, or (c) has a physical or mental disability as determined by the federal or state governmental agency existing prior to the child reaching age 19 and requiring continued child support, or (3) when a child is receiving support in an out of home placement through the DCP&P. Absent this, a parent could only seek to extend child support beyond the age of 19 by motion “due to exceptional circumstances as may be approved by the court”. Further, even where child support has been extended under the statute, the obligation to pay child support shall terminate by operation of law when the child reaches 23 years of age. However, the statute also provided that it was not intended to prevent a child who was beyond 23 years of age from seeking a court order requiring the payment of other forms of financial maintenance or reimbursement from the parent as authorized by law to the extent same was not payable or enforceable as “child support”, or to prevent the court upon application due to exceptional circumstances, including but not limited to a mental or physical disability, from converting a child support obligation to another form of financial maintenance for a child who had reached the age of 23.
While on first blush it may appear that characterizing an obligation as “child support” as opposed to “financial maintenance” may be a distinction without a difference, when it came to matters of enforcement or a court’s continuing jurisdiction to review same, this was certainly not the case. Child support was enforceable as such, including under such means and mechanisms available through the appropriate Probation Department or other IV-D Support Enforcement Agency. Financial maintenance was not. There are a multitude of statutes and cases applicable to the establishment and modification of child support obligations. Not so when it comes to “financial maintenance”. As I had surmised when NJSA 2A:17-56.67 was originally enacted, there was likely to be considerable confusion as to the scope of this statute. That clearly was the case when it came to children who were suffering from severe mental or physical incapacity. While the statute recognized this circumstance as a basis to extend child support beyond age 19, it would nevertheless terminate as a “child support obligation” when the child reached 23 years of age by operation of law; rather, it could be converted to a form of financial maintenance “due to exceptional circumstances”. Therefore, children who remained financially dependent upon their parents because of such severe mental or physical incapacities were at risk of losing their child support and/or of an effective means to enforce the same. As a result, the Legislature saw fit to amend NJSA 2A: 17-56.67 to address this unattended consequence.
Subsection (a) of the statute was amended so as to specifically include as an additional exception to the termination of child support upon a child reaching the age of 19 “by operation of law” where:
“The child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent, in consideration of the factors set forth in NJSA 2A: 34-23, and the continuation of the obligation to pay support for that child is specified in a court order or judgment.”
Additionally, subsection (e) which had originally included the provision “[N]otwithstanding the provisions of this section, the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age”, was in light of the above-added provision, amended to now read:
“Except for child support services provided pursuant to paragraph (2) of subsection (a) of this section for a child who suffers from a severe mental or physical incapacity that causes a child to be financially dependent on a parent, the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age.”
Finally, and perhaps most importantly, the following provision was added to subparagraph (f) which obviously goes to the heart of the reason for this amendment in the first place, and which states that nothing in the statute shall be construed to:
“prevent the court, upon application of a parent or child, from ordering the continuation of the child support obligation or the continuation of Title IV-D services, or both, for a child with a severe physical or mental incapacity that causes the child to be financially dependent upon a parent and consistent with paragraph (2) subsection (a) of this section. The parental obligation to provide support for the child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. In assessing the financial obligation of the parent, the court shall consider the factors set forth in NJSA 2A:34-23.”
Simply stated, when it comes to a child with a severe physical or mental incapacity who remains financially dependent upon a parent, the obligation of a parent to provide “child support” for that child remains open for so long as a child is incapacitated and financially dependent upon that parent. So too the requirement of the Probation Department or Title IV-D Agency to establish, monitor, and enforce such child support obligation. The duty of a parent to financially support a child beyond the age of 23 who suffers from a severe mental or physical incapacity is no longer just a moral one. With this recently enacted amendment to NJSA 2A: 17-56.67 it is now a legal obligation as well.