So you are divorced and your child is going off to college. What is the best way to get the other parent to contribute, whether there is an agreement that says he should or the agreement says that the issue shall abide the event. Should you A) consult prior to college and keep the other parent in the loop and then make a motion if you cannot agree before the child goes off ot college; B) make a unilateral decision then file your motion; or C) wait until the child graduates and when the other parent makes a motion for emancipation, hit him with a cross motion asking him to pay his share of a six figure college bill? Obviously, A is the preferred method, B is a worse method and C is a method that may risk you not getting re-paid.
As we learned from the Supreme Court a few years ago in Gac v. Gac, a former husband was not required to contribute toward his child’s college education expenses, because neither his ex- wife nor his child requested financial assistance from him until after he sought to terminate child support and the child had graduated from college. The Coourt found that their failure to make such request at time that would have enabled the father to participate in child’s educational decision as well as to plan for his own financial future weighed heavily against ordering him to contribute to the child’s educational expenses after her education was completed.
As the philosopher George Satayana said, those who cannot learn from history are doomed to repeat it. That is what happened in the unreported (non-precedential) case of Fletcher v. Euston decided on June 11, 2013. The facts of this case are similar to Gac and the worst case noted above. However, the parties’ divorce agreement did provide that the parties would share the cost of college based upon their financial ability at the time. In response to the Husband’s motion for emancipation, the ctrial court ordered him to reimburse the former wife over $111,000. The Husband appealed.
Interestingly, the Appellate Division affirmed his obligation to pay, primarily because the Agreement required him to pay, but reversed and remanded to determine the amount. In fact, the Court noted:
The dispute on appeal centers on the amount of the expenses, their allocation as between the parties, and Fletcher’s ability to pay.Two complicating factors is this case are (1) the factual dispute concerning the origin of the conceded lack of relationship between Fletcher and his children and (2) the fact that there was no effort to address the issue of college expenses with Fletcher before the children started college. Indeed, Euston did not raise the issue until Fletcher sought to emancipate the children.
As a consequence of both, Fletcher had no role in the choice of colleges or the efforts to obtain grants and financial aid. Although not necessarily determinative, the source of the estrangement can inform the judge’s exercise of discretion on the issue of college expenses, as can the timing and manner of the request for financial assistance.
So what is the take away from this case? Consult regarding college before college, even if the relationship is bad between father and child and make your application sooner rather than later.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.