Emancipation: The End of Child Support

Child support ends when a child is emancipated. In some states, parents are obligated to financially support their child until the child reaches the age of 21 or becomes earlier emancipated. In other states, the age of emancipation is 18.  A parent has no obligation to support a child who is emancipated, unless the parties agree otherwise and memorialize their agreement in writing.  Thus, if a child in a state where the age of emancipation is 21 or older and attending college, an Agreement between the parents extending the support payor’s obligation to pay support or college expenses beyond the age of 21 must exist in Order for the Court to impose such a liability.  In the states where, Child Support terminates at the age of 18, even if a child is still attending high school, Child Support payments will cease.

Various events will serve to emancipate a child before the emancipation age, thereby ending a parent’s support obligation. Once of those events is the entry by the child into military service. The rationale for this exception is that once a child enters the military he or she is no longer under parental control but is under the complete control of the U.S. Government. The Government is responsible for providing for the child’s necessities and for paying a salary to the child. The child is deemed to be financially independent and, even if one parent is regularly visiting the child and providing the child with “extras”, such a magazine subscriptions and care packages, the child will be considered emancipated.

Two other events, which can end a party’s support obligation, are the death of either the support payor or the child. In the event of the death of the parent paying support, absent an express provision on an Agreement between the parents, no claim will exist against his or her estate for additional support payments. The support obligation will be deemed terminated. If the child dies during minority, obviously, so too will a parent’s obligation to provide financial support for that child.

The marriage of a child will end a parent’s support obligation. Once a child’s status has changed from that of a child under the control and care of a parent to a married person, it is deemed inconsistent to the principals of Child Support and inequitable to require a parent to provide financial support. If a minor child gives birth to a baby, the child may also be deemed emancipated. Whether or not a Court will consider such an event an emancipation will hinge on factors such as whether the child is gainfully employed, living outside of the parental home, and whether or not the child is married.

If a child is younger than the age of emancipation but living outside of their parent’s home and  receiving public assistance, the parent may still be required to provide Child Support. While the receipt of public assistance alone is not enough to require a parent to pay support, a Court may extend a parent’s support obligation. 

Other events can also lead to emancipation.  If a child moves out of their parent's home and becomes and becomes fully employed and self-supporting, a parent’s support obligation will end. Seasonal or part time employment during a child’s summer or other school breaks and while a child is attending school, is usually not deemed a sufficient emancipation event.

If the child is adopted by another party, the parent who is relinquishing his or her parental rights will no longer have an obligation to pay Child Support. However, the Child Support obligation will continue until the adoption is final. As a result, during the adoption process, but before the final declaration of adoption is issue, a parent’s obligation to pay Child Support will continue.

The conduct of the child may lead to a determination that he or she is emancipated.  Thus, if a child refuses to submit to parental control and guidance, a parent may be able to cease paying Child Support.  A Court Order is generally required to terminate Child Support under these circumstances.

If a child moves from the home of one parent to the home of the support payor, the move is not considered an emancipation event. Since the minor child is still being financially cared for by the parents, and is under the control and guidance of the parents, he or she is not emancipated. The child’s change in physical residence may be considered a ground for modification of Child Support.

The varying rules between the states on the age of emancipation can have a significant effect upon the payment of child support.  If a Child Support Order is issued by a state with an emancipation age of 18, the custodial parent and child's move to a state where the age of emancipation is 21 will not change the age of emancipation.  The Child Support Order of the original state will continue to control, except under very limited circumstances.

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Child Tax Credits and Divorce

One issue which is often negotiated in the context of a divorce or separation is that of tax credits. Who can claim certain deductions is often fiercely debated between divorcing parties. Parents of minor children who are going through this process all too often overlook various tax deductions and the ramifications of relinquishing the child dependency exemption.

If you are in the midst of settlement negotiations, you may well be aware that it is permissible under the Internal Revenue Code to assign the right to claim the child dependency exemption to either parent. A non-custodial parent can claim this exemption provided that the custodial parent executes IRS Form 8332. Assigning the exemption to the non-custodial parent, however, may effect the right to claim other tax credits.

Two credits which are not effected by assigning the dependency exemption to the non-custodial parent are the child care credit and earned income credit. These deductions can only be claimed by the custodial parent (whichever parent has physical custody of the children for the greater part of the year). Even if the custodial parent has relinquished his or her right to claim the dependency exemption, the right of that parent to claim the child care credit and/or earned income credit will not be effected. Similarly, a non-custodial parent who has been granted the right to claim the dependency exemption may not claim either the child care credit or earned income credit.

Three other potentially valuable credits, however, are effected by who has the right to claim the dependency exemption. The Under Age 17 Child Tax Credit, Hope Credit and Lifetime Learning Credit may only be claimed by the parent who has claimed the dependency exemption. Even if you have physical custody of the children, if you do not have the right to claim the dependency exemption, you will not have the right to claim these three credits.

While the Hope Credit and Lifetime Learning Credit may only be claimed if your income falls below a certain level, the right to claim these, and the Under Age 17 Child Tax Credit may represent valuable tax savings to you. If you have relinquished the right to claim the dependency exemption, you will have also forfeited your rights to claim these three credits.

In negotiating the terms of your Divorce of Separation settlement, you should contemplate and specifically address not only the dependency exemption, but also these other child tax credits. Insofar as many attorneys are unfamiliar with the Tax Code, it would be wise to consult with an accountant to discuss these and other tax issues in detail prior to entering into a Divorce or Separation settlement.

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