Child Support, Emancipation and Child’s Economic Independence

One of the most common questions I hear as a part of my family law practice is a question of when a child become emancipated for child support purposes.  My usual response is that emancipation of minors depends on a variety of circumstances.  The Child Support Standards Act’s provisions dealing with emancipation hold that the child becomes emancipated upon reaching the age of 21, joining military, or getting married. In addition, the child may become constructively emancipated by willingly abandons the parent and withdrawing from parental supervision and control. In addition, the child may become emancipated, assuming the child is of employable age, by becoming economically independent of the parents. If emancipation is sought for a child who is of employable age, and is working, I usually tell my client that the child has to work between 35 and 40 hours per week and generate sufficient income to be economically independent of the parents.  In some situations, however, even a full-time job may not be enough.

A recent case, Thomas B. v. Lydia D., 2009 N.Y. Slip. Op. 06789 (1st Dept. 2009), is an excellent illustration of these concepts.  In Thomas B., the Appellate Division held that two parents may not, by written agreement, terminate the child support obligation because of the child’s full-time employment, without a simultaneous showing of the economic independence of the child.

Pursuant to a stipulation of settlement entered into as part of the parties’ judgment of divorce, father was obligated to pay annual child support until the parties’ child reached the age of 21 or was otherwise “emancipated.”  The stipulation defined emancipation as “the Child’s engaging in full-time employment; full-time employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event.”  The father brought a motion seeking to declare the child emancipated and argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005.  The mother opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse.  His employment at the music store was one of the conditions of that treatment.  She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses.

The court stated that mere full time employment was not enough, and emancipation would require economic independence from the child’s parents which is not established by merely working a standard, full-time work week.  Thus, even where a child is working but still relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance and the like, 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.  Moreover, the parties cannot contract away the duty of child support.  The Appellate Division found insufficient evidence in the record to support a finding that the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house. The child’s employment was one of the requirements of participation in the halfway house substance abuse program.  In Thomas B., it was clear, that although he was working 35 hours per week during the period of time in question, the child was not economically independent of his parents, and thus was not emancipated during that period of time.

One lesson of Thomas B. is that the lawyer dealing with this type of situation must present sufficient evidence to establish the child’s work hours and income, as well as his/her needs and expenses.  It is also critical to present testimony as to whether the other parent is meeting the child’s other financial needs, and whether such financial assistance is necessary or is merely voluntary.  If you believe that your child became emancipated due to employment, I would recommend consulting with a family law attorney.

Economic Support and Equitable Distribution

I have previously written that New York’s equitable distribution law does not require equal distribution of marital assets.  This view has been confirmed by recent case, Glassberg v. Glassberg, Index No. 24307/05, __ Misc.3d __ (Sup. Ct. Suffolk Co. 2009).  A disbarred attorney who provided “limited, sporadic, unreliable and inconsistent” support to the “economic partnership” of a 17-year marriage should receive only 35 percent of the couple’s property.  The court found that during the marriage ” the Wife provided a substantial share of the financial and day-to-day support in maintaining the household … includ[ing] working full-time, being the primary caregiver for their son and … providing for the consistent and reliable income flow the family enjoyed.”

Marc Glassberg, an English teacher who went to law school at night, married Dorene Glassberg, a special education teacher, in 1988, a second marriage for both. The parties have one child, born in 1989. Ms. Glassberg filed for divorce in October 2005.  Mr. Glassberg, who was admitted into New York Bar in 1985, testified that he “never netted more than $30,000 annually in earnings as an attorney,” except in one instance.  He  testified that he ran his practice out of his basement and his car after being unable to afford a storefront office.  He resigned from the bar and was disbarred in 2000, as the result of disciplinary proceedings against him for failing to preserve client funds from the sale of a home. Since then, he has worked in a series of jobs, including stints at Godiva Chocolates and a card store.  In 1999, he took another job teaching English at a Bronx high school, commuting six hours a day but was fired in 2001 for misconduct. A teacher in Los Angeles since 2008, Mr. Glassberg reported an income of just over $64,000 in 2008.

Ms. Glassberg, on the other hand, earned more than $118,000, according to her 2007 tax return, as a long-term teacher.  Mr. Glassberg argued that he had been involved with his family and that despite his “hard luck, misfortune and indeed a ‘reversal of fortune,'” had striven to be a parent and provider. Ms. Glassberg countered that despite working full-time, she “engaged in virtually all of the household duties with no assistance” from Mr. Glassberg, including cooking, cleaning, yard work, laundry and “always” doing homework with their son. She conceded that Mr. Glassberg coached the son’s soccer team for two years and took out the garbage.

While Mr. Glassberg “surely exercised extremely poor judgment” in getting disbarred, he “nonetheless generally (although at times inconsistently) acted to earn income during the marriage”.  However, his role in running the day-to-day household and contributing to the economic partnership was “limited, sporadic, unreliable and inconsistent,” the judge concluded.  He awarded Ms. Glassberg 65 percent of the marital estate in equitable distribution.

The wife’s attorney argued that Mr. Glassberg’s conduct in losing his law license and getting fired from his New York teaching job should be considered wasteful dissipation of marital assets, reducing his share of the couple’s property. However, the court did not address these issues and instead held that Mr. Glassberg had not contributed equally to the economic partnership of the marriage.

This case demonstrates what I have previously written.  If one spouse’s economic contribution to the marriage was significantly less than that of the other spouse, the court has discretion to distribute marital property in accordance with each spouse’s economic contribution to the marriage.  An experienced divorce lawyer should be able to evaluate each situation and determine if such argument as advanced in Glassberg is warranted.