In a recently decided case, the Appellate Division of the New Jersey Superior Court affirmed a lower court ruling that the language in a Marital Settlement Agreement governed modification of child support despite, in the absence of such language, clear cut New Jersey law to the contrary. In Gartenberg v. Gartenberg, a Marital Settlement Agreement was achieved with respect to all issues, including child support.
For present purposes, the legal issue was whether Mr. Gartenberg was entitled to a reduction of his child support obligation while the parties’ son was attending college away from home. New Jersey law is clear that a parent’s child support obligation may be reduced for those months in which his or her child is living at college, since a portion of the child’s living expenses are covered by room and board (or off campus housing) payments by the parents.
Unfortunately for Mr. Gartenberg, the parties’ Marital Settlement Agreement stated that he would pay a specified amount of child support to his former wife “until the emancipation of both children”. No provision was made for Mr. Gartenberg’s right to seek a child support reduction while his son was residing at college. The Appellate Division held that Mr. Gartenberg could not seek such relief (which would otherwise have been available) based on the language in the Agreement.
The point is that while Marital Settlement Agreements are favored, care must be taken to include provisions to deal with such situations or which at the very least reference New Jersey law on the particular topic. Courts are loath to upset Agreements since they do not stand in the parties’ shoes and do not know if, for example, a certain provision was “bargained for” somewhere else in the Agreement. As a result, the responsibility belongs to all concerned, especially attorneys who negotiate and draft Marital Settlement Agreements.