Motions/Post-Dispositional Applications

In this Topic

  1. Introduction
  2. Agency Responsibilities
  3. Process
    1. Formal Filing
    2. Summary Support Actions (Post-Dispositional Application)
    3. Effective Date
    4. Emancipation
    5. Termination
  4. Related Information

Introduction

Motions/Post-Dispositional Applications are applications to the Court to modify and/or enforce an existing order. The majority of motions filed regarding child support are motions for upward or downward modification to the support order. The New Jersey Supreme Court, in Lepis v. LepisLepis v. LepisLepis v. Lepis, 83 N.J. 139 (1980), provided that a party is entitled to a modification of a child support order, based on a substantial change of circumstances. Examples of other motions include, but are not limited to the following: change in child-care-related expenses; change of income; credit for direct payments; emancipation; arrearage issues; parenting time (visitation); custody (change of beneficiary).

Agency Responsibilities

Motions/Post-Dispositional Applications are filed with the Family Division. The Family Division uses FACTSFamily Automated Case Tracking System to process, schedule, track, and manage cases. The Family Division also updates the appropriate information in NJKiDSNew Jersey’s Federally certified, statewide automated case management system for tracking all information related to child support cases. NJKiDS monitors cases to ensure that case actions are completed within required time frames. NJKiDS is also used to provide statistics, reports, and information about child and alimony/ spousal support enforcement in New Jersey to Federal, State, and local authorities. NJKiDS serves as the State Case Registry for IV-D support cases..

Process

There are two ways to file with the Family Division, based on the docket type and/or relief requested:

  • Formally filing a motion (FDFamily Dissolution, FV [domestic violence], or FMFamily Matrimonial docket types)
  • Summary Support Actions (using the Application for Post-Dispositional Hearing; FD and FV docket types)

Formal Filing

Rules governing the motion practice are set forth in the New Jersey Court Rules. In child support matters, Rule 5:5-4 sets the following requirements:

  • A copy of the order to be enforced or modified must be attached to the motion papers.
  • If the motion seeks modification of an order for child support, a copy of both the prior and current CISCase Information Statement must be attachedmust be attached Rule 5:5-2.
  • A certification in support of a motion cannot exceed 15 pages.
  • A notice of motion must be served and filed with supporting affidavits (or certifications) at least 29 days before the return date.
  • Opposing papers in response to the motion must be served and filed at least 15 days before the return date.
  • Motions must include a Notice to Litigants (as set out in Rule 5:5-4(d)), which explains how parties can file a response.
  • A copy of the CLISConfidential Litigant Information Sheet is required on FM docket types onlyonlyRule 5:4-2(g); Rule 5:5-3.

For those wishing to file on their own behalf, pro se packets that explain the process, procedures, forms, and mailing addresses are available from the Family Division in each county and can also be downloaded from www.njcourts.com. Refer to your supervisor as some Family Divisions have procedures to divert child support modification motions to Child Support Hearing Officers.

Summary Support Actions (Post-Dispositional Application)

If a party wishes to reopen a case for modification of a court order, a post-dispositional application is taken. Applications for post-dispositional hearings are processed through the Family Division. The Family Division provides the necessary forms and information to the filing party. If the requested action addresses the amount of support, a Financial Statement must be completed and attached to the application in lieu of a CISCISRule 5:5-3.  

Effective Date

If a motion/post dispositional application to modify is granted, the effective date is usually the date that the motion was filed with the Court. However, this matter is subject to the discretion of the Court. The order may be made effective the date the motion was heard, or the effective date may be a date agreed to by the parties or any other date (e.g., when the Court finds that the child was previously emancipated). If the effective date is not included on the order, the effective date is the date the order is signed by the Superior Court Judge, Family Division.

Historically, the effective date of the modification of child support orders in New Jersey was at the discretion of the Court. In 1998, the State Legislature limited the ability of the Court to retroactively modify an order by enacting N.J.S.A 2A:17-56.23a, which states:

No payment or installation of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice was mailed.

This law does not prohibit a Superior Court Judge, Family Division, or a Child Support Hearing Officer from emancipating a child before the filing date of the motionmotion Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995).  

Emancipation

Most states have statutes that define when a child is emancipated. An emancipated child is no longer entitled to support. In New Jersey, emancipation is determined by the Court according to the facts of each individual case.

The New Jersey Supreme Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982), stated:

Although emancipation need not occur at any particular age, a rebuttable presumption against emancipation exists prior to attaining the age of majority, now 18. See N.J.S.A. 9:17B-3. Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation.

The parties can agree when the last or only child on the order is emancipated and terminate the order and the PCSEProbation Child Support Enforcement Unit’s enforcement responsibilities. When there are multiple children remaining on the order, or if the parties disagree on emancipation, the decision must be made by the Court on motion by a party to the case (usually the obligor).  

Note: The terms and conditions of emancipation or termination of support may be found in the final divorce decree and should be researched. The age, date, and provision of emancipation may be stipulated in the court order.

In the case of support orders for multiple children, the emancipation of one child does not automatically reduce the child support order by that child’s pro rata share. Section 24 of Appendix IX-A (Considerations in the Use of Child Support Guidelines) of the New Jersey Court Rules states:

“If the guidelines were used to calculate a child support award for two or more children, the emancipation of a child shall not result in a proportionate reduction of the support order. . . . Instead, child support award should be recalculated based upon the current income of the parents and the number of unemancipated children.”

It is not unusual that an obligor would be ordered to pay as much or more in support for the remaining children. This is dependent upon such factors as the age of the existing support order.

Termination

Unless otherwise provided in a court order or judgment, the obligation to pay child support shall terminate by operation of law without order by the court on the date that a child marries, dies, or enters the military service.  In addition, a child support obligation shall terminate by operation of law without order by the court when a child reaches 19 years of age unless:

  • 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;
  • A written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19 in accordance with subsection b. of this section; or
  • The child receiving support is in an out-of-home placement through the Division of Child Protection and Permanency in the Department of Children and Families.

A custodial parent may submit a written request, on a form and within timeframes promulgated by the Administrative Office of the Courts, with supporting documentation to the court, including a projected future date when support will terminate, seeking the continuation of child support beyond the date the child reaches 19 years of age in the following circumstances:

  • The child is still enrolled in high school or other secondary educational program;
  • The child is a student in a post-secondary education program and is enrolled
  • The child has a physical or mental disability, as determined by a federal or State government agency, that existed prior to the child reaching the age of 19 and requires continued child support.  

A custodial parent may file a motion with the court seeking to extend the obligation to pay child support beyond the date the child reaches 19 years of age due to exceptional circumstances as may be approved by the court.

  • Lepis v. Lepis, 83 N.J. 139 (1980)
  • Rule 5:5-2
  • Rule 5:4-2(g); Rule 5:5-3
  • Rule 5:5-3
  • Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995)

 

Institute for Families, School of Social Work  Rutgers, the State University of New Jersey - Child Support Program Manual 2020 Release