New Jersey Divorce Lawyer Blog
A major consideration in determinations of child support obligations is the time with each parent in a true joint custody arrangement. When one considers this situation, there are obligations to both parents for the children that would not be shared expenses but for the equal time arrangement, so the court makes an effort to compensate for those expenses by varying from the standard child support guidelines.
New Jersey child support includes various types of expenses for the child, including fixed expenses such as housing, utilities and other expenses incurred whether or not the children is present; variable expenses such as the costs while the child is each parents’ care such as food and transportation; and controlled expenses such as clothing, personal hygiene items, entertainment and various other expenses while the child is in a parent’s care. Controlled expenses are those that can be challenged as the expenses required in the household of each parent. If a parent is ordered to pay full guidelines child support in a situation where the child is with them fifty percent of the time, they would be paying these controlled expenses twice, once in their own home, and again when the child was with the other parent. Obviously, one parent paying for the same expenses twice is unfair and unreasonable.
The child support guidelines set controlled expenses to be 25% of the entire child support obligations. There is a case, Wunsch-Deffler v. Deffler, that found, in a 50/50 sharing of the parents’ time with the child or children, this 25% controlled expense amount should not be included in the payor’s child support obligation. Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch.Div. 2009). Therefore, pursuant to this court, the guidelines child support amount for the payor should be reduced by 25%.
Although this sounds like a simple formula to apply to be assured of the result of this reduction, unfortunately, that is not the true. Trial courts do not have the same level of power to create precedent that the Appellate Courts have. As a practical matter, although this case is out there and decided as above discussed, other courts are not bound to follow the Wunsch-Deffler decision because it was only a trial court decision.
What this case does provide is an argument for variation from the child support guidelines that can be made on behalf of the payor who has a 50/50 custodial arrangement with their children, to have their child support obligation reduced by at least the 25% suggested by the trial court in the Wunsch-Deffler case. All courts have the power to vary from child support guidelines for a number of reasons and to use their discretion in certain circumstances. The court can do so where there is an equal number of overnights with each parent for the child or children. But, the court does not have the obligation to follow the 25% reduction standard set by the Wunsch-Deffler court, though it can use the reasoning in Wunsch-Deffler or use its own discretion and power to vary from guidelines to reach a proper result.
If you need to discuss variation from child support guidelines based upon the time you have with your child, please call the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.
