At Hammerman Rosen LLP, we often speak to divorced parents of young adult children with disabilities or special needs. Those parents need to know how the revised child support law, updated in February 2017, impacts how “child support” awards are calculated once their young adult child with disabilities or special needs reaches the age of 23.
As most would assume, under the law, a child with disabilities should not be emancipated “if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent.” N.J.S.A. 2A:34–23. However, once a child turns 23 years old, there is a bright line rule requiring that “child support“ end.
The relevant section for divorced parents of young adult children with disabilities or special needs is contained at N.J.S.A. 2A:17-56.67(a), which states, in pertinent part:
a child support obligation shall terminate by operation of law without order by the court when a child reaches 19 years of age unless (1) another age for the termination of the obligation to pay child support, which shall not extend beyond the date the child reaches 23 years of age, is specified in a court order; (emphasis added).
Thus, on its face, the law terminates “child support” at 23 years of age for all children, regardless of circumstance. However, the reader should not conclude that support of the young adult child with disabilities or special needs will definitely end upon that child’s 23rd birthday. The question is one of semantics.
While “child support” for all children in New Jersey will terminate upon 23 years of age, non-custodial parents of young adult children with disabilities or special needs can still be ordered to pay “maintenance” for those children. “Child support” and “maintenance [for a young adult child with disabilities and special needs]” are different only in that “maintenance” is not enforceable through Probation and is not called “child support.” Such Court Orders are still enforceable through the Family Court enforcement mechanism of filing, beginning with filing a motion to enforce litigant’s rights.
Therefore, non-custodial parents of young adult children with disabilities and special needs turning 23 should not assume that they will no longer pay money directly for their child’s maintenance, whether called “child support” or “maintenance.” However, the burden is squarely on the custodial parent of the young adult child with disabilities or special needs to file a Notice of Motion in the Family Court of appropriate jurisdiction.
This conclusion was supported in the recent decision Scarpa v. Scarpa, 2017 WL 1179843, at Footnote 2 (App. Div. 2017) which states that:
[t]he statute is applicable even when the child has a mental or physical disability. N.J.S.A. 2A:17–56.67(e)(2). However, if a parent needs to obtain financial assistance for a disabled adult child, the new statute allows the court to order ‘another form of financial maintenance for a child who has reached the age of 23.’
In all, the new law favors non-custodial parents of young adult children with disabilities or special needs as they will no longer need to fear the strong enforcement mechanisms previously provided by the Probation department once their child turns 23 years old. Additionally, an adult child who suffers from a disability but is self-sufficient will ordinarily be considered to be emancipated. See Kruvant v. Kruvant, 100 N.J. Super. 107, 119 (App. Div. 1968).
Thus, if you are a divorced parent and your child has a disability or special need, or if you received a notice that “child support” will be terminating for your child, you should strongly consider hiring an experienced family law attorney to represent you. We are eager to assist you in any complicated Family Court matter.
The author, Matthew J. Rosen, Esq., is a family law attorney, family law mediator, and partner with Hammerman Rosen LLP.