The issue of relationships between parents and children when determining allocation of college expenses is often a complicated one. I have had many post divorce clients, usually non-custodial clients, discuss their frustration with the lack of involvement that they have had in the selection of college for their sons or daughters but are expected to pay a significant portion thereof. They feel as if the are simply “a wallet.” The recent unreported Appellate Division decision of Miller v. Tafaro brought this to mind.
In Miller, the father had been estranged from his children for many years following the parties’ divorce. When the mother asked the court to enforce the Property Settlement Agreement as to the payment of college expenses, the father said that he should not have an obligation to pay as he did not have a relationship with the children. The Court noted that as this was but one factor for consideration by the court, and, given that the lack of relationship over the years with the children was a result of the father’s actions, the trial court’s decision that the father was obligated to pay a portion of college expenses was affirmed.
Our Courts have set the factors to be considered when determining a parent’s obligation for college expenses. These are: (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 the 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 ability 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.
Each of these factors are important and none are necessarily more significant than others. Rather, it is the entire picture that must be looked at when assessing expenses. Each set of facts are different. Yet, I believe that it is important for divorced parents to be aware of these factors as they begin the college selection process with their children and former spouses. It can make a significant difference in the ultimate resolution of expenses if you wind up in Court.
EDITOR'S NOTE: While the relationship is one of the factors to be considered and there are cases that discuss it at length, more often than not, court's will go out of their way to find an obligation to pay for college in New Jersey.
New Jersey is in the minority of states at this point that requires parents of divorced children (but not intact families) to pay for college for their children. in many states, this has been raised as a constitutional issue. The constitutional argued was raised in the New Jersey Supreme Court case of Gac v. Gac but the Supreme Court failed to decide the issue, as it was able to decide the issue on other grounds. I suspect that one day, the direct constitutional argument, i.e. why are children of divorce treated differently than children of intact families, will be brought again to the Supreme Court to decide this thorny issue. ERIC S. SOLOTOFF