By: John P. Paone, Jr., Esq. and Cassie Murphy, Esq.*
In New Jersey, a child who attends college full-time does not automatically become emancipated at age 18. When the parents are divorced, it is not uncommon for one parent to be required to pay child support to the parent who has custody of a child over 18 attending college. This situation inevitably raises the question whether the parent paying child support is permitted to pay child support directly to the child, rather than to the custodial parent. This question is usually based upon the concern that the custodial parent does not actually use the child support funds for the benefit of the child. It can also be based upon the paying parent’s desire to interact directly with the child regarding the payment of the child’s expenses from the child support funds, rather than the other parent. From the custodial parent’s perspective, however, there may be a concern that the child will use the child support funds carelessly or frivolously. There may also be a concern that the custodial parent will not be able to afford the costs of his or her home and other expenses incurred for the child’s benefit, if a portion of the child support is paid to the child instead of the custodial parent. This controversial issue was recently addressed by a trial court in Ocean County.
In the unpublished case of Kayahan v. Kayahan, the trial court examined this issue and determined that, provided that a child is over 18 years old, payment of a portion of the child support obligation directly to the child might be appropriate. In determining whether such an arrangement is appropriate, a court may consider factors such as: 1) whether the child is mature enough to handle the financial responsibility of using the child support payment properly; 2) whether the parent paying child support has a history of paying child support on time; and 3) whether there will be sufficient remaining child support funds for the custodial parent to be able to maintain his or her primary home without significant financial hardship. Even if a trial court permits the paying parent to pay a portion of the child support directly to the child, the Kayahan court suggested that certain conditions should be put into place to monitor those payments, such as a condition that the funds may only be used by the child for certain specifically-identified expenses, and an ongoing requirement that the child provide an explanation of his or her use of the funds to both parents.
The Kayahandecision was unpublished, meaning that it may not be used as precedent in other cases. However, a prior Appellate Division case of Jacoby v. Jacoby also suggested that, in some cases, it may be more appropriate to pay a portion of the child support directly to the child, rather than to the custodial parent. It remains to be seen how this principle will be applied to future cases. If you are a party to a divorce with an unemancipated child over the age of 18, you should explore with your lawyer the various options you may haveregarding the payment of child support as a result of these decisions.
*John P. Paone, Jr., Esq. and Cassie Murphy, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski, Brown & Murray, with offices in Red Bank and Woodbridge.