There are certain provisions that divorce lawyers regularly utilize when drafting separation agreements. Some of those provisions concern topics such as the distribution of marital assets, spousal maintenance, child support, and/or counsel fees. Drafting such provisions can become routine, but glossing over them is not advisable.
One such provision is regularly found in the “Article” of a separation agreement titled “Emancipation Events,” (i.e., an event upon which the noncustodial parent’s obligation to pay child support may terminate). The emancipation event that I will focus on in this article is often defined as a child having a permanent residence away from the custodial parent (the child support payee).
If, at the time a separation agreement is signed, Mom is the custodial parent and Dad is the noncustodial parent, you will likely see this enumerated emancipation event: permanent residence away from the residence of the Mother.
That all seems quite straightforward—at least I thought it was until I read E.B. v. A.F., 2025 NY Slip Op 51286(U) (Family Court, Nassau Cty. 2025). In E.B., the parties married in 2010, and entered into a separation agreement and divorced in 2019. The two children of the marriage are ages 14 and 11 according to the decision.
The parties’ separation agreement designated the Mother as the residential custodial parent and the Father was required to pay basic child support. Section XI of the separation agreement, titled “Emancipation of the Children” defined “Emancipation” to include “permanent residence away from the residence of the Wife.”
However, in 2024, the Father was granted temporary custody of the children; the Father also petitioned to suspend his child support payments due to the change in residential custody. The Father prevailed: he was granted residential custody and his basic child support obligations were terminated.
As expected, the Father then petitioned for support, requesting child support from the Mother (now, the noncustodial parent). In May 2025, a Support Magistrate dismissed the Father’s support petition and determined that “the children of the marriage emancipated when they left the Mother’s care and Custody.” The Father filed objections to the Support Magistrate’s order in Family Court, arguing that the separation agreement did not preclude him from receiving child support for the children of the marriage.
The E.B. decision states that while “parties may [] provide for emancipation contingencies in a written agreement or stipulation… The parties cannot contract away the duty of child support.”
In granting the Father’s Objections, the Family Court explained that nothing in the separation agreement “indicates that the Father waived his right to receive child support from the Mother upon a change of circumstances that led to a change in custody of the children. The 2019 Separation Agreement is silent on this issue.” Such silence on that issue did not obviate the Mother’s duty to pay child support if there was a change of custody:
To be clear, this Court does not read the parties’ 2019 Separation Agreement as eliminating the Mother’s duty to support the children upon a change of custody. However, even assuming arguendo that the parties intended such a result, enforcement of same would be in contravention of New York’s public policy and prevailing law in this jurisdiction as the children are not economically independent.
More specifically, the decision explains that the 14- and 11-year-old children of the parties’ marriage could not be considered emancipated under the circumstances:
A child cannot be considered emancipated, regardless of how clearly and unambiguously the parties defined that term in an agreement, unless he or she is economically independent, … In this matter, N.B. is 14 years old, [], and Z.B. is 11 years old, []. There is nothing in the record to reflect that either of these children earn an income or that either of these children is remotely self-supporting.
The matter was remanded back to the Support Magistrate to determine the correct amount of child support to be paid by the mother to the father. “Extinguishing support” for the 14- and 11-year-old children of the marriage “where there is no evidence of economic independence is against public policy and prevailing law in this jurisdiction…even assuming that the parties’ 2019 Separation Agreement deprived these children of that benefit, which this court does not believe it does, this court has discretion to invalidate such a provision.”
On any given day, it seems that matrimonial law is going in many different directions. If you are left scratching your head after reading E.B., you are not alone.
While the decision to uphold the father’s objections is correct, it begs the question: when we draft separation agreements, do we now have to expressly state that while permanent residence away from the custodial parent is an emancipation event, child support does not end if there is thereafter a change in custody before the child turns 21? Because, if we do not, then are we opening ourselves up to litigation as was the case in E.B.?
One thing is clear: the list of “better safe than sorry” practice pointers for divorce lawyers is growing exponentially. Perhaps we need to rethink how we draft seemingly boilerplate provisions in separation agreements.
"Unnecessarily Prolonging Divorce Litigation May Cost You Dearly," by Alan R. Feigenbaum was published in the New York Law Journal on October 23, 2025.
Reprinted with permission from the October 23, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
