Parents Cannot Contract Away Child Support Obligations

Posted on October 6, 2009 by Daniel Clement

A finding of emancipation terminates the parental obligation to pay child support. For this reason, the issue is oft litigated.

The typical divorce settlement agreement provides that child support will terminate on the happening of an “emancipation event” which is defined by parties’ settlement agreement, but generally includes the child’s death, marriage or entry into the military.

Many agreements also provide that a child should be deemed emancipated if the child enters the workforce on a full time employment. However, the Appellate Division, First Department ruled last week that a child’s full time employment alone does not constitute an emancipation event; the child must also be fully self supporting and economically independent.

In Thomas B.v. Lydia D, the parent’s agreement provided for the termination of support, without any consideration of the son’s economic independence. Support terminated only if the child was employed on a full time basis.

The Court ruled that this provision was contrary to law and public policy.

The parties cannot contract away the duty of child support. "Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children.“ The duty of a parent to support his or her child "shall not be eliminated or diminished by the terms of a separation agreement" nor can it be abrogated by contract.

Whether a child is economically independent requires a fact specific inquiry. Even if a child is working but relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance or clothing, the child cannot be considered economically independent, and thus is not emancipated This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support.
 

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To Appeal or To Not To Appeal: Statistics

Posted on June 5, 2008 by Daniel Clement

In any litigation, in which the court must render an order or judgment, there is a winner and there is a loser. Sometimes, the court will even telegraph its decision, in advance, in order to facilitate a settlement discussion.

Most clients, when informed of an adverse decision (or even the potential for one), will, as a knee jerk reaction invariably say, “Let’s Appeal!” or “If the judge does that, we will appeal.”

Without even addressing the fact that not every decision is appealable, the odds are that an appeal will NOT be successful. To the contrary, most appeals are unsuccessful.

Dick Bailey Service, Inc., an appellate printer, recently sent me statistics it compiled of the appeals submitted to the Appellate Division, Second Department from January through June 20007. Not surprisingly, in 52% of all cases appealed, the trial court’s order or judgment was affirmed (the appeals court agreed with the trial court); sixty two (62%) percent of all matrimonial cases were affirmed.

Less than, one quarter of all cases, but only 14% of the domestic relations cases were reversed. In eleven percent of the cases, the lower court decision was somehow modified.

These statistics illustrate the fact that an appeal in a matrimonial case has only about twenty five (25%) chance of either reversing or modifying the underlying order or judgment.







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