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minor children shall not revert to the surviving parent
without an order or judgment of the Superior Court to
that effect. * * * [N.J. Stat. Ann. sec. 9:2-5 (West
2003).]
New Jersey law does not specify whether unallocated support
payments terminate on the death of the payee spouse. Ms. Kean
relies on Gonzales v. Commissioner, T.C. Memo. 1999-332, in which
this Court held that New Jersey law would not necessarily have
relieved the payor spouse of his obligation to pay family support
had the payee spouse died before entry of the divorce judgment,
under the particular circumstances of that case.
Respondent and Mr. Kean argue that the decision in Gonzales
is not applicable to the instant case. They argue that Gonzales
was wrongly decided and, alternatively, that the facts of the
instant case distinguish it from the facts of Gonzales. The
factual distinction highlighted by respondent and Mr. Kean
involves custody of the children. In Gonzales, the payee spouse
had primary residential custody of the children. In the instant
case, Mr. Kean and Ms. Kean shared a residence with the children
for most of the period during which the disputed payments were
made, and the orders make it clear that they shared custody of
the children during the period when the disputed payments were
made.
The Court in Gonzales v. Commissioner, supra, concluded that
“The fact that the unallocated support order is modifiable and
temporary tells us, at the least, that a court might have reduced
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