Parents Financial “Obligations” towards their Children’s College / Trade School Costs under NJ Family Law- Overview
1. Does the court system really have the right to impose an obligation on me to contribute to the cost of my child’s college / trade school education if I don’t want to contribute?
Answer: If an application is filed with the court system by your former spouse or significant other for college / trade school contribution, the court can impose a financial obligation upon you.
2. Our divorce settlement agreement was silent on the issue of contribution to college or trade school costs, can the court still impose an obligation upon me for contribution or do I have the right to rely upon the absence of any obligation in the agreement for contribution to justify my decision not to contribute?
Answer: Even though your agreement was silent on the subject, the court can impose an obligation on both parents to contribute to college costs.
3. Our divorce settlement agreement states that I have no obligation to contribute to the cost of our child’s college or trade school costs. Can a court still impose an obligation upon me for those expenses?
Answer: Yes. An agreement between you and your former spouse cannot limit the scope of your financial obligations to your children nor can that document prevent them from receipt of appropriate support from both parents and neither parent has the right to bargain away obligations owed to the children by both parents.
4. Why can the court impose financial obligations on me for college contribution in a divorce setting but can’t impose the same obligations on me if my spouse and I were not divorced?
Answer: Under the Parens Patriae doctrine, the state has the right to act as the supreme guardian of all children within its jurisdiction and based on that power, the Courts are given the power to intervene in disputes between parents to protect the “best interests” of their children. Absent a divorce type setting between parents, the court system does not have the power to intervene and impose obligations.
5. My child wants nothing to do with me and simply views me as a pocket book– after he turns 18 / graduates from high school, do I still have an obligation to contribute to his college costs or do I have the right to view his actions as justification to view him as emancipated?
Answer: maybe. The fact that your child and you have had a falling out does not mean that you get to avoid your financial obligations to your child. If so, a parent could simply create a rift with their own child and then use that rift to justify not wanting to contribute.
This is a complicated and difficult issue for judges and therefore the court will start its inquiry with what efforts you as the parent have undertaken over the course of the last number of years for reunification purposes with your child, including your efforts at reunification therapy and what applications were made to the court for assistance in your reunification efforts.
Simply taking the position that your child wants nothing to do with you without showing your efforts to rebuild that relationship, will generally not be viewed as a sufficient basis to end your financial obligation. Judges are also loath to terminate the obligation, believing that such action potentially severs any possibility of a future reunification.
Conversely, if you have repeatedly pressed for reunification therapy with the child and each time, the child has refused to attend counseling with you and the other parent refuses to assist in those reunification efforts and repeated court orders have been entered requiring cooperation by your child and your former spouse to assist in reunification and they have refused to cooperate, a court can view such actions differently and then deem the child emancipated for college contribution purposes.
6. I was not consulted about the college selection process by my former spouse and child but they still want me to contribute to the costs. Since they decided not to include me in the college selection process, do I still have any obligation to contribute to the college selected by them without my input?
Answer: Yes / maybe. This is probably the most college contribution issue addressed to the court system and one where judges wrestle with making the right decision.
The first question is what does the settlement agreement terms says about each party’s right to be involved in the selection process.
The next question is whether you buried your head in the sand and never sought to be involved in the college selection process or whether you actively sought to be involved in the selection process and were rebuffed. From a judges perspective, the answer to that question potentially has great relevance to the decision making process. Similarly, simply telling your former spouse that you will not consider any schools other than in state public universities may also be viewed by a court as an unreasonable action and may explain why you were not included.
7. I am willing to pay my fair share of the cost of our child’s attendance at a NJ state school and if our child wants to go to a more expensive out of state or private school, my former spouse and child can pay for the additional cost of attendance – isn’t that fair?
Answer: No. putting down the gauntlet and telling your former spouse and child what you are willing to pay is not a reasonable action and will not be perceived well by a court.
If the appropriate school for your child is more expensive than an in state public school, then saying your obligation is capped at the cost of the state school can be viewed as unreasonable by a court and can cause a judge to impose upon you a greater share of the obligation and the legal fees s associated with the application.
To avoid this outcome, you are better off exchanging all pertinent financial information with your former spouse (gross income from all sources, bank, brokerage and retirement account details, etc) and agree upon a ratio of contribution between the 2 of you and jointly decide whether you and your former spouse want your child to contribute to the total cost of the education as well.
If you can’t agree on the ratio of contribution, whether your child should contribute, whether your child will be required to apply for all loans grants and scholarships, then all of the relevant financial information will end up in front of a judge, who will make all of those decisions; which decision you / your former spouse may not like.
8. If I am contributing to the cost of our child’s college costs, do I really still have to pay my former spouse child support?
Answer: maybe based on whether your child is living away at college or living at house during the school year, whether your child is working to help pay for her expenses, your current income and asset picture and how much you are paying towards the college costs. In many settings especially where the child is living away at college during the year, the parties agree that the payment of child support will only cover the period of time when the child is off from college and at home (i.e. summer vacation time) or is reduced to reflect the payments made during the school year covering most of the child’s expenses.
9. What costs are included in the payment of our child’s attendance at college and do I have to contribute to all of those items?
Answer: Most colleges list on their websites an overview of expenses anticipated for those attending, including meal plans, tuition, room and board, college related health insurance coverage, lab fees, book fees, computer and printer needs. On top of those basic items are the costs of setting up a dorm room, SAT /ACT test prep, application fees, travel costs to and from school during the year, travel costs to visit the various schools as part of the selection process and an allowance while at school.
10. What if our child does not graduate from college inside of 4 years, do I still have to contribute to the cost of his continued attendance?
Answer: most likely yes. Most judges presume that an extra 6 months to an extra year is not unreasonable or unanticipated and will most likely continue to impose the obligation to contribute. Where the line gets fuzzy is where you have a child who seems to have no real plan for the future and moves from one school to the next and continues to drop classes and who is not showing real academic progress. In that setting, a judge might intervene and end the obligation or impose a deadline for completion.
11. Am I entitled to copies of our child’s grades, course selection, attendance, and declared major information if I am contributing to the cost of his attendance, if our child and former spouse refuse to voluntarily turn that material over to me?
Answer: Yes but make sure that your divorce agreement imposes that obligation on your former spouse and child. And if they refuse to provide it ( after repeated efforts to obtain it), you may then have a basis for termination of your financial obligation or an entitlement to an order for sanctions against your former spouse for not turning that material over to you promptly.
12. Do I have the right to select a grade point average requirement for my continued contribution to our child’s college costs and do I have the right to pull my financial assistance if his grades fall below that average?
Answer: probably not. Many if not most agreements put language in about a child’s obligation to maintain a specific grade point average for contribution purposes, but it is simply to help “motivate” a child and / or if a parent decides to file an application with the court to reexamine his financial obligations to the college costs.
13. I heard recently that a child sued both of her parents (divorced) for college contribution purposes since neither parent wanted to contribute to her college expenses any longer. Can a court really impose a financial obligation on my former spouse and me if both of us are in agreement not to provide our child with payment of her college costs?
Answer: Yes. As odd as that may sound, under the Parens Patriae doctrine, the state has a right to intervene if a child files an application with the court against both parents and the state has the right to impose financial obligations on both parents in appropriate settings.
To better understand the answers to the questions listed above, under New Jersey’s statutory and case law, parents have an obligation to financially support their children until their children are legally “emancipated." The issue therefore is when is your child “emancipated” under the laws of this state?
As a general statement, if your child does not go on to college nor to an accredited trade school program upon graduation from high school, there is a presumption that he is emancipated at that point and you presumably are entitled to a termination of further financial support. In this setting, upon graduation from high school or upon turning 18 (in the event your child is no longer in school), the parent paying child support has the right to a court order terminating his child support and related obligations.
If your child has graduated from high school or turned 18 and not pursuing college or a trade school education immediately thereafter and the other parent is not willing to voluntarily cooperate with the entry of an order for termination of the support obligation, then an application to the court is necessary for termination purposes.
The fact that your child may still be living with the other parent after graduation from high school ( and trying to figure out what he wants to do now), does not mean that he is not emancipated in the eyes of the law.
Now the tricky part.
If your child graduates from high school and wants to pursue a college education or trade school education, the NJ family court system takes the position that parents who are “financially capable” should contribute to the higher education needs of children who are “qualified students”. And, in appropriate circumstances, that parental responsibility includes the duty to ensure their children of a postgraduate education as well.
To aid in deciding whether a parent should have the obligation to contribute to the cost of a college or trade school education, our courts are supposed to focus on the following factors: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long range goals of the child, and (13) Any other factors the court may deem relevant.
While our courts have laid out the factors to help determine whether a parent should contribute to the cost of their child’s higher educational needs, the reality is that our court system “presumes” that all parents want to assist their children in obtaining a college or trade school education after high school, even if the cost of obtaining it is unduly burdensome to the parents.
Therein lies the rub between the view of the NJ family court system and court systems elsewhere in this country - as to the imposition of a financial obligation upon parents for a college education, New Jersey is in the minority in imposing the obligation. Most other states do not believe that the court system has the right to impose such an obligation upon parents.
And, while clearly taking the position that parents should want to assist their children in their high educational pursuits, the next “common” issue confronting divorced parents in this state is who decides what school is appropriate and how the cost associated with the child’s attendance is to be paid.
That is actually the tougher issue and the one dealt with regularly by family part judges in this state. And the reason why it is tougher is because there is no set rule to assist parents or the court in how to determine what is appropriate for a particular child. Which means that while you may think that attendance at Rutgers at 24,000.00 per year is appropriate, your former spouse and child may disagree and suggest that attendance at a private school or out of state school more appropriate, even though the cost of same dramatically greater than the cost of an in- state college.
And simply because you don’t think that you should pay more than 25% - 50% of the cost of Rutgers, does not mean that the family court judge will agree with you – which means that you can end up having to pay 50% of the cost of a private college (running about 50,000.00 – 57,500.00 per annum currently) plus the cost of the lawyer involved in representing you on the court application and potentially getting hit for all or a part of your former spouses legal fees for the application as well – Ouch!
The payment of college costs also differs from the payment of child support for a college student. Child support and contribution to college expenses are two discreet yet related obligations imposed on parents.
From the courts perspective, the differences are that the typical expenses associated with college attendance include tuition, registration fees, lab costs, housing, board, books, and computer costs and though the child support needs lessened in certain areas (such as room and board), arguably other necessary expenses may increase when a child goes to college. Further, many child support type expenses remain when a child heads to college, including: transportation (possible automobile maintenance or payments, gasoline, parking, or alternate travel expenses); furniture (such as lamps, shelves, or dorm set-up and small appliances); clothing; linens and bedding; luggage; haircuts; telephone; supplies (like paper, pens, markers or calculators); sundries (such as cleaning supplies, laundry detergent); toiletries (soap, shampoo and other personal hygiene necessaries); insurance (automobile, health and personal property); entertainment for college events and organizations; and spending money.
In deciding whether to impose a financial obligation and if so, how much, Courts are supposed to balance the child support statutory criteria set forth in N.J.S.A. 2A:34-23(a) and the factors set forth above, as well as any other relevant circumstances, to reach a fair and just decision.
And simply the absence of a “relationship” between a parent and a child will not in and of itself justify the decision not to contribute to the college / support costs of the child. Our courts have stated that the existence of a good or healthy relationship between a parent and his child is not essential for the court to impose a financial obligation upon him, but the absence of that relationship (and the reasons for same) is relevant to the courts analysis and is a factor for the court to consider in its decision to impose an obligation and if so, to what degree.
Advice: College costs are significant today and the cost of litigation between parents over how much each should contribute could equal or exceed the cost of a years worth of college costs. If you have children and a disagreement over how much each should contribute, take a deep breath, exchange all pertinent financial information and agree upon a fair ratio between you and your former spouse to contribute ( and what is covered in that equation) and whether your child will also have "skin in the game" towards the total cost. Sometimes, parents agree that the child will take out student loans and agree that the parents will pay back on those loans.
If you have not been asked to be involved in the college selection process, dont sit back in a Pilate-like stance attempting to absolve yourself of responsibility - ask and make it a priority to be involved. Get to know which schools your client wants to attend and understand why that school is being considered. Dont wait until the selection process is over and then object to a particular school.
And best, consider working with a competent college planner to assist you and your former spouse and child on selecting the right schools and helping you to understand what scholarship / grant monies may be available for each school towards the total cost. Also understand that most schools are willing to work with you and look for monies to help your child get into the school but you have to ask.
And lastly, if you and your former spouse / child still cant work out the terms / each parties share of the costs, consider jointly retaining a family law mediator or family law arbitrator to resolve the issues outstanding. Using a family law mediator or family law arbitrator in this setting may be significantly less expensive that an application to the court and postnatally the cost of a "hearing" by the court on the various factors, financials, etc to decide who should pay what amount.