Appellate Court Clarifies Standard For Emancipation In Post-Judgment Modification Case
- March 19, 2014
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In Disesso v. Disesso, the Appellate Court decided a case where the Plaintiff , Tina Disesso, appealed from a post-judgment order issued upon the Defendant, Nicholas Disesso’s, cross motion to modify his alimony obligation and emancipate the ex-couple’s son and daughter. The Family Court judge ordered that the parties’ son be emancipated, modified the child support to reflect the son’s emancipation, imputed income at the minimum wage to the Plaintiff and reduced the Defendant’s alimony obligation. The parties in this case were married in 1982 and had two children, a son born in 1987 and a daughter born in 1990. They were divorced in 2004 and had a property settlement agreement incorporated into their Final Judgment of Divorce that addressed the issues of alimony, child support, and the emancipation of their children. The agreement provided for permanent alimony and child support. The Defendant agreed to pay $4,000 a month in alimony and $268 a week in child support. Due to their son’s special needs, the property settlement agreement incorporated into the parties’ divorce judgment included a special standard regarding their son’s emancipation. The standard provided that the son would be emancipated “only when he [was] able to live independently and work full-time to support himself.” In May of 2012, during court proceedings brought by the Defendant to enforce a court order to emancipate the son, the Family Court found that the parties’ son was operating a business as of 2011. The court found that the son was “running a business, and he was capable at that point in time of moving beyond the sphere of influence of his parents.” Pursuant to this finding, the court emancipated the son retroactively to be effective as of November 1, 2011. The Appellate Court reversed and vacated this provision of the order. According to the court, the standard for emancipation that the parties agreed to, which was focused on their son’s capacity for independent living and self-support, was consistent with the overall legal standard for emancipation which states that emancipation occurs when: “the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, the child is no longer entitled to support.” Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). The court holds that in this case the son’s age and ability to operate a business for a time was “arguably adequate” to warrant further inquiry and that the terms of the agreement addressing the son’s special needs and his continued receipt of social benefits called his capacity for independent living into question. The Appellate Court remanded the case back to the lower court to re-address the facts material to emancipation. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment or if you have questions regarding the legal standard for emancipation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, emancipation, divorce, alimony, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.