I am paying child support for my child who is a full-time college student, not living on campus, and works part-time.
I believe he is emancipated because he has a permanent residence away from home, but is not residing at a boarding school or college dormitory.
My ex-wife argues that our child is not self-supporting since he is a student and not working full time.
Whose argument for child support emancipation is correct?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on New York divorce laws where I am licensed to practice.
Yours is not an uncommon situation, where a child away at college is not living on campus and is working at least part-time.
The separation agreement you entered with your ex-wife, and incorporated by the court into a judgment of divorce, is a contract.
If there is a dispute between you and your ex regarding the interpretation of that contract the courts will render a decision as to whether either party is in breach.
If you are currently paying child support through the Support Collection Unit of your state, and not directly to your wife, then you would have to bring an action to modify the support agreement on the basis that your child is now emancipated.
If you are not paying through the child support agency, but paying directly to your wife, and you feel that your child is now emancipated, you can stop making payments on that basis. It would then be your wife’s burden to bring an action against you for violating your support obligation.
As to the underlying question of whether your child is in fact emancipated pursuant to your agreement, courts have regularly held that living off campus while attending college does not render a child emancipated.
The real questions are if they are attending college and if they are being supported by the spouse receiving support, either by payment of tuition and/or payment of living expenses. This will ultimately be decided by a judge.
If your ex-wife has continued to support your child while he is attending school, then it is likely the court will not find that he is not emancipated and your support obligation will continue. Again, this will depend largely on the specific language of the agreement and the level of support being provided to your son by your ex-wife.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with divorce lawyers for men in your jurisdiction.