NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

The number of college graduates living with their parents has almost doubled since 2007. Currently, over 45% of 26-year-olds live at home with their parents. The figures highlight the difficulty that many young Americans have had in establishing careers following the longest recession this country has faced since the Great Depression. Some children, although employed, simply lack the funds to move out and may remain with their parents, even well into their twenties.

As a Matrimonial Attorney, these staggering statistics present an interesting question as to a non-custodian’s obligation to continue contributing to the support of a child, though a college graduate and/or employed, is still ostensibly supported by his or her parents; at least with regard to shelter expenses.

In New Jersey, a parent is under no duty to contribute to the support of an emancipated child. In deciding whether to emancipate a child, a Court will generally examine whether the child has “moved beyond the sphere of parental influence.” When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated. As mentioned above, a curious situation presents itself where the child should be self-supporting, but the economy prevents him or her from obtaining lucrative employment.

A similar, yet instructive, situation was the topic of a recent (unreported) decision by the Appellate Division in Gall v. Gall. In Gall, the parties’ son, Brian, lived at home and intended to enroll as a full time student in the future. He worked full time, paid for his personal expenses including gasoline, clothes and food outside the home. However, his earnings were insufficient to allow him to move out of his mother’s home.

The trial court declined to emancipate Brian and awarded child support pursuant to the Child Support Guidelines. In addition, the non-custodial father was required to contribute toward Brian’s college expenses. The non-custodial father appealed.

While the Appellate Division “agree[d] in theory that a full-time college student is not emancipated as there is no ‘fixed age’ for emancipation…” it further found that because Brian was employed full-time and was only a part-time student, he should have been deemed emancipated. As a result, the Court reversed the order of child support as to Brian. In doing so, the Appellate Division set forth a bright line (although non-precedential) rule of thumb: “…a child over the age of eighteen, working full-time, and attending school only part-time, absent some unusual circumstances…is emancipated even if residing with a parent because his or her employment income is alleged to be insufficient to allow the child to live independently.”

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For a non-custodial parent, the rejection of a child is one of the most stressful and hurtful situations regardless of whether the deterioration in the relationship is the child’s fault, the custodial parent’s fault, the non-custodial parent’s fault or a combination of all three. Unfortunately, the bitterness often escalates when the child and custodial parent seek financial contribution for the child’s college education. Many non-custodial parents in these types of situation question whether or not they are legally obligated to contribute towards the college expenses of a child who refuses a relationship with them.  

In Newburgh v. Arrigo, 88 N.J. 529 (1982), the New Jersey Supreme Court established twelve factors that a court shall examine in evaluating a claim for a contribution by a parent towards the costs of their child’s higher education. While all twelve factors must be weighed by the Court, a common issue raised by the non-custodial parent relates to factor eleven:

11.       The child’s relationship to the paying parent, including mutual affection and shared goals, as well as responsiveness to the parental advice and guidance.

Many litigants assume that if there is a deterioration in the relationship between a non-custodial parent and a college-bound child, the non-custodial parent’s obligation to contribute towards college is terminated. However, in Gac v. Gac, 351 N.J. Super. 54 (App. Div. 2002), the Appellate Division held that while there are circumstances in which a child's rejection of their parent would warrant a dismissal of any obligation on their part to contribute to the child's college costs, a child’s rejection of a parent's attempt to establish a relationship does not immediately eradicate that parent’s obligation to contribute to college costs. For purposes of determining college contribution, the analysis is not simply whether there has been a breakdown in communication but whether a non-custodial parent can be required to contribute to his or her children’s college costs when communication between parent and child has been severed and, as a result, the parent has not been part of the college selection process or the child’s college  progress.

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At the start of the week when most parents who have college students are writing that second semester check (gulp), the Appellate Division has decided a non precedential case in which a father objected to the trial court’s decision to make him pay 27% of his daughter’s college expenses at a private college. The case brings to the forefront situations in which the realities of limited available income come head to head with obligations for college expenses. Throw in a poor relationship between one parent and the college student, and you have a mess.

In the case of Caruso v. Whitlock, the father’s income was such that his basic child support obligation under the child support guidelines had been reduced as a result of the self support reserve. The self support reserve is a calculation in the child support guidelines which ensures that the obligor has sufficient income to maintain a basic subsistence level. So in other words, after child support, the obligor has to have left an amount which is 105% of the US poverty guideline.

The child in this case was enrolled in Rider University, a small private university without input from the father, with whom she did not have a good relationship. Both parents blames the other for the poor relationship.  The judge took some testimony from the parties on the issues, but there was not a formal hearing.  The daughter preferred a smaller college as opposed to Rutgers, the State University. The father stated that he wanted his daughter to go to college. The child received minimal financial assistance from the college and had some limited assets of her own.

The trial court ordered the father to pay 27% of the net college expenses which was based on the percentages from the child support worksheet that had been used the year before in an application for unreimbursed medical expenses. This came to approximately $6860 per year.  

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As many parents get ready to send their children off to college, those who are collecting child support from a non custodial parent wonder how their child support may be affected. The New Jersey Child Support Guidelines are applicable when computing child support for children who are less than 18 or more than 18 and attending high school and living at home. What, then, happens to child support when a child leaves for college? The guidelines specifically state that they should not be used to determine parental contributions for college or other post secondary education. As an exception, they may be applied when a child is living at home and commuting to college. Over the years, courts have taken an inconsistent view as to how child support should be calculated for children living away at school. In the recent, published ( precedential) case of Jacoby v. Jacoby, the NJ Appellate Division addressed this issue.

In the Jacoby case, the parties who were divorced had two children. When the oldest matriculated at college, the non-custodial father moved to reduce his child support obligation to Ms. Jacoby since the child no longer resided in his mother’s house. The trial judge granted his application, and reduced the child support by employing a formula in which the judge calculated child support for two children, and then one child. The judge then took the difference of these two sums and determined 38% of the difference and 25% of the calculated remainder   These two sums were then added and set as support.   Essentially, what the trial court did was to recognize that child support is comprised of three broad categories: fixed costs - those costs that are incurred even when child is not residing at home. An example is housing related expenses; variable costs - those costs which are incurred only when the child is with the parent ( food is an example); and controlled Costs - costs which are incurred by the primary caretaker of the child, such as clothing and entertainment. The court then presumed there was a lower amount of variable and controlled costs when the child was away at college and reduced support accordingly. 

When the second child matriculated, Mr. Jacoby again sought a reduction. A different judge heard the application and denied Mr. Jacoby’s request. He then appealed. 

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We are in the season that High School seniors and their parents suffer from college anxiety. Figuring how to pay that tuition bill is stress enough in a two parent, happy household. In cases of divorced or separated parents, it can be overwhelming. Spring is when I receive most inquiries from clients about the payment of college tuition and expenses. I have just completed a college tour with my child, and attended multiple presentations in which I listened to many questions from parents. While March and April are when the acceptances generally come in, and one parent becomes concerned about the financial contributions of the other, now is actually the time to begin “getting your ducks in a row.” So I offer the following tips: 

•   One of the most litigated issues in college contribution cases is the relationship between the parent and child and whether the non-custodial parent has been given a voice in the process.   Now that your senior (or better yet,  if you have a junior) is filtering through the masses of brochures that are coming in the mail every day, make sure that he or she stays in regular contact with the other parent, giving information about the schools he or she is looking at and making a case why they may be a good fit. If the relationship is strained with the non-custodial parent, make doubly sure that this information is flowing on a regular basis, and do it through emails or written correspondence. If your student is not doing this, make sure you do it. It may be a critical issue later. Build a paper trail. 

•   All colleges and universities are now required to provide an estimate of total costs per year. Find that information on the school’s web site and pass it along. Make sure there are no surprises. And make sure you do it. Sometimes,  parents want to make the student responsible for the communication with the other parent. That’s fine until a critical error is made in the excitement of the college process. I once had a case where the student inadvertently received the approval of the other parent on the costs only to find out later that he had not realized that the figures he was using did not include room and board. Understandably, the other parent felt a bit snowed. One this one occasion, be a helicopter parent.

•    Make sure you and your student apply for any and all financial aid and scholarships. Even if you do not think that your student will qualify, do it. First, you may be surprised. Some schools are actively seeking students from a specific geographic area, and will offer aid as an incentive. Second, this is a specific issue that courts look at.

•   On that note, if you usually file for an extension on your tax returns, or if you know that your former spouse, or other parent does, let them know that it is important to get the returns filed on time. The FAFSA form, the application for federal financial aid, and the form that most schools use when determining need based financial aid, will want to see current income information. If one parent refuses to cooperate in this regard, this may be a factor a court will review.

•   Understand how the schools your child wants to attend handles financial aid decisions. Some schools only look at the income of the custodial parent. Others look at the income of both, and still others look at total household income, including income from step parents. Know what you are dealing with and how it may affect your situation.

•   Investigate the state schools and apply. This even if your student really does not want to go. First of all, it is good to have a back up safety school. More importantly, many non custodial parents take the position that they should only have to pay for a state school, and when the child has not even applied, that becomes the battle cry of the litigation. Better that you and your student show that you have investigated all options, and have a solid argument as to why another school may be a better fit.

Finally, be realistic. What would you and your former spouse or other parent have done if you were still together? If a state school was the only option that your child would have had if you had lived happily ever after, don’t assume that your ex is going to be ordered to foot $50,000 per year ( unless of course they have had a significant change of circumstances for the better since the break up).

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I previously blogged about a case in which a father appealed a decision by the trial court for him to contribute towards college expenses for his two children. To review that prior blog, click here. The fifth ( yes, fifth) appeal on the same issues was recently decided. In Tafaro V, the Appellate Division discussed situations in which litigants come back repeatedly to the courts on the same issues.

In the Tafaro matter, the parties’ property settlement agreement had provided that college costs would be determined at the time they were incurred, and also that consent to school should not be unreasonably withheld. Subsequently, the parties were unable to agree as to college and the division of costs, so they sought assistance from the court. Eventually, however, in 2004, Ms. Tafaro was given final authority on the major decisions for the children including their schooling by the court. This was upheld in the first appeal. Subsequently, Ms. Tafaro had to come back to court to obtain contribution towards college expenses and Mr. Tafaro then appeal that order, and lost.

Three more appeals followed, all of which resulted in affirmations of the trial court decisions, and in the last the Appellate Division discussed the concept of “law of the case.” The doctrine of law of the case is a legal concept that is designed to prevent the re-litigation of issues that have already been decided. In situations in which, as in the Tafaro matter, litigants keep asking the courts to review the same issue over and over, it is appropriate to stop the litigation. Thus, once the time for appeal has expired, the courts decision becomes the “law of the case” and the issues of college cannot be re-litigated.

Certainly, the law of the case would not apply in a situation in which facts have changed such that it would be inequitable to bar a party from seeking help from the courts. However, when a party asks for the same relief continually, the doctrine can close the doors.  

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An often addressed issue between divorcing parents is who is going to pay for the children's college education and related expenses, and in what proportion.  When the issue is litigated, a court will generally look to the twelve factors enunciated in the Supreme Court's 1982 Opinion of Newburgh v. Arrigo.  Resolutions between parties may include a number of possibilities, including dividing the costs in proportion to the parents' respective incomes, abiding the event, etc.  Settlement agreements also typically contain language requiring the child to apply for scholarships, grants, loans and other forms of financial aid to stem the blow.  College funds or other types of savings accounts might have been established for the children that are to be applied before any additional financial obligation befalls on the parents. Each of these different mechanisms is designed to protect the children, ensure proper education, while also considering the parent’s financial circumstances as well, which are often altered following a divorce due to additional expenses, new families, legal fee debt and the like.

The next question, forming the basis of this blog post, is what obligation do parents have to contribute to graduate school?  Does a parent have an obligation to pay for a child's law school tuition?  How about medical school?  This infrequently addressed issue in the court system was recently taken on by the Appellate Division in Schambach v. Schambach, a very interesting decision containing an analysis in a concurrence/dissent that merits in-depth discussion.

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On May 21, 2010, the Appellate Division issued a reported (precedential) opinion in Colca v. Anson involving different aspects of child support and college support.  This case reinforces several principles regarding child support and payment of college expenses that we already knew (which makes it somewhat surprising that it was reported) but nevertheless is a good reminder of certain basic principles. 

The first of these principles is that child support belongs to the child and thus cannot be waived by a parent or for that matter, by a court.  This comes up in two contexts in this case.  First, in a 2005 Order, for whatever reason, the trial court denied the father's request for child support for the parties' daughter who was in college.  In another motion in 2008, the father sought child support again.  Thinking that the matter had previously been decided by the court and that there were no changes of circumstances, the mother did not even file a Case Information Statement. 

The trial court disagreed with the mother's position that the prior Order was forever binding and required a showing of changed circumstances, pointing out that the duty to support a child continues until emancipation.

In addition, the Appellate Division affirmed the trial court's decision that the child's inheritance could not be considered with regard to support.  While perhaps correct as to child support, there are not enough facts given in this opinion about how much was really in dispute. That said, the Child Support Guidelines suggest an adjustment to child support may be required if a child has an extraordinarily high income.  Also, in the famous NJ case on college expenses, Newburgh v. Arrigo, which we have blogged on many times before, a child's assets are a factor to be considered.  Since the college was at issue in this case, one wonders why the inheritance was not considered here.

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Post-judgment motions are common in family law, especially when it comes to paying for college tuition for the children of the divorced parties. Often times, older Property Settlement Agreements ("PSA") are ambiguous when it comes to which parent will pay a child’s college tuition. As was the situation in the recent unpublished decision in Orero v. Orero, App. Div., docket no. A-2230-08T3, decided on February 19, 2010.

The Orero’s were married in 1987 and divorced in 1996. In 1996, the parties entered into a PSA where they agreed that if the children were to attend college each party shall contribute “to the best of their ability.” Well fast forward 13 years and their oldest daughter is about to begin college in Colorado. Now, Mrs. Orero seeks Mr. Orero to contribute half of the daughter’s college expenses. Mr. Orero alleges that he was (1) not consulted regarding the daughter’s choice of schools, (2) doesn’t have the ability to pay because he has children from another marriage, and (3) if he must pay, than he is entitled to a plenary hearing (similar to a trial) to determine the relevant facts. As a result, Mrs. Orero files a motion with the court seeking to enforce the PSA. Notwithstanding Mr. Orero’s arguments, the trial judge ordered Mr. Orero to pay half the college expenses. Mr. Orero filed a motion for reconsideration, which is denied. So Mr. Orero appeals.
 

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Many couples in the midst of a divorce have very young children. As a result, the issue of funding their children’s college education is typically reserved until the child is of college age. Parties typically agree to include language in their Property Settlement Agreement wherein they will exchange income information and begin discussions regarding the child’s college expenses during the child’s junior year of high school. This makes sense because after all, no one can predict their financial future. Fast forward 15 years, the child is about to begin the process of applying to college. The parties have informal discussions, sans counsel, regarding their respective contributions. The custodial parent accepts the non-custodial parent’s contribution for a few years then decides it is just not enough. Can the custodial parent seek a retroactive contribution toward the child’s college expenses? 

The Appellate Division just answered this very question in the unpublished decision of Kmetz v. Fusaro, Decided October 9, 2009, Docket No. A-5870-07T3. In Kmetz v. Fusaro, the parties divorced when their daughter was 9. Their Property Settlement Agreement includes the following clause “The parties acknowledge their desire of the child to attend college or other post graduate professional schooling consistent with the child’s ability and the parent’s financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after all available financial aid, scholarships and part-time and summer earnings.”  

The parties’ daughter attended college immediately following high school graduation. The Father voluntarily paid $1,500 each year toward his daughter’s freshman and sophomore year college costs. In the summer between the daughter’s sophomore and junior year, the Mother asked Father to increase his contribution. Father increased said contribution to $2,000 that year. In the middle of the daughter’s junior year, Mother retained an attorney who contacted Father seeking an additional contribution toward the college expenses. Ultimately, Mother filed a motion with the trial court seeking contribution, in proportion to income, toward the daughter’s college costs for her freshman, sophomore, junior and senior years. The trial court granted Mother’s request and ordered Father to pay 68 percent of his daughter’s college costs for all four years.

The Appellate Division, relying upon Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982), concluded that Father  should not have to contribute toward the college costs of his daughter’s freshman, sophomore and first semester junior year. Reason being, Mother accepted Father’s voluntary contributions for the aforementioned years.   Suffice it to say, if you are the custodial parent of a child on the heels of the college application process, it is essential that you discuss the funding of your child’s college education with your ex-spouse. If you are unable to reach a resolution, it is imperative that you seek the Court’s assistance prior to your child’s first day of college.

EDITOR'S NOTE:  To avoid the typical complaints about lack of consultation and lack of notice, the custodial parent should also involve the non-custodial parent in the process as early in college selection process, as possible, and put the communications in writing.  Perhaps the non-custodial parent should be invited to make college visits with the custodial parent and the child or otherwise, should be invited to take the child to other colleges for visits.  In fact, the other parent should be solicited for schools that he/she would suggest being considered.  The more that is done in this regard, the less the other side can object to and as such, the review becomes a financial one, as opposed to dealing with some of the other extraneous issues that often come up.  ERIC S. SOLOTOFF

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Previously I have blogged on both the issue of sanctions assessed by a court against one party in a divorce or post divorce matter and also the obligation to contribute to the costs of a college education for a child and to what extent.

These issues are often addressed to the Appellate Court of New Jersey as in many family law matters they are topics hot for debate.  Most recently, the Appellate Division in the unpublished decision of Hikes v. Hikes, Decided August 13, 2009, Docket No. A-6642-06T2 addressed both the issue of sanctions and the payment of college for a child.

Sanctions may be requested by a party or  granted by a court on its own in a situation where one party acts in extreme bad faith or is non-compliant.  Sanctions can be viewed as a sort of punishment for that extreme bad faith or non-compliance.  This is especially so when the other party acts in good faith and is complaint. 

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Recently, I addressed the question as to when a child is emancipated under the eyes of New Jersey law.  As I indicated there, the New Jersey Supreme Court defines emancipation as "the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child."  Newburgh v. Arrigo, 88 N.J. 529 (1982). A related question also addressed by the Court in Newburgh is a parent's obligation to contribute towards a child's postgraduate education expenses.

The Supreme Court in Newburgh set forth a non-exhaustive list of factors for a court to consider in determining a parent's obligation to contribute to such educational expenses.  These factors were subsequently codified by statute at N.J.S.A. 2A:34-23(a) as follows:

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 parties.

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 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.

12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

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A question faced by all parents is, when is a child emancipated in the eyes of the law?  As set forth by the New Jersey Supreme Court,  "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child."  Newburgh v. Arrigo, 88 N.J. 529 (1982).  The question and answer therefore have far reaching financial implications.  However, emancipation does not occur at a fixed age.  Rather, the inquiry is fact-specific. 

This issue was recently taken on by the Appellate Division in the matter of Brandes v. Rigney, an unpublished opinion finding that the trial court applied improper legal principles in concluding that a child was emancipated.  The parties at issue had three children before they were divorced in 1997.  In 2004, the father, Brandes, sought to have the parties' sons emancipated.  The parties' oldest son, Raymond, was born in 1982, while the other son, Eric, was born in 1985.  The trial court denied Brandes' motion at that time.

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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.

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In many divorce matters, attorneys, clients and judges alike must determine how to deal with the issue of support for children, oftentimes which includes the divvying up responsibility for payment of college expenses.

There is a large body of case law in New Jersey that deals with this very issue and provides guidance as to how a court should decide the issue of payment of towards college, if parties cannot come to an agreement on their own.  However, each case is fact sensitive and must be considered on its own merits.

In a recent unpublished Appellate Division decision entitled Novy v. Novy, A-4207-07T2, decided January 12, 2009, the Court remanded the issue of whether a child was in fact emancipated and not entitled to financial support from her parents towards the cost of her college education.

Mother and father were divorced in 2001.  Incorporated in their Property Settlement Agreement was the requirement for father to pay child support to mother until the children were emancipated.  The Agreement went on to state what would be deemed an emancipation event such that same would trigger the termination of father's support obligation for that child.

The parties' daughter has experienced mental health and personal adjustment problems for many years. She didn't graduate high school but later earned her GED. She has been attending Ocean County Community College since fall 2006.  At the same time she began college, she moved out of her mother's home and into the home of a friend's family.

In July 2007, father filed a motion with the court seeking to have daughter emancipated based on her residence away from her mother and her failure to attend college as is delineated in the Agreement reached by the parties.  That application was denied, however the court did rule that if daughter failed to make continuous progress toward the completion of her college education, including registering and completing not less than 12 credits/semester, father's obligation to support her would terminate.

Some 6 months later, father and mother entered into a Consent Order, which declared that both parties agreed daughter was emancipated and father's support obligation was terminated.  Shortly after this agreement was reached, daughter filed her own motion with the court seeking to intervene and vacate the Order declaring her emancipated.

Father was the only one who opposed this application and in his Certification he set forth several allegations upon which he determined daughter to be emancipated.  Daughter, in her responding Certification denied these allegations.  The trial court granted daughter's motion to intervene and vacated the Consent Order into which her parents entered and agreed that she was emancipated.

Father appealed that Order.  On appeal, the Appellate Division noted that the determination of whether a child was emancipated depended on the facts of each case.  Furthermore,it has already been determined by the Appellate Division that "merely because both parents are united in their determination to declare the child emancipated" may not defeat the child's right to support.  Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).  The Court noted that the essential question to be answered is whether the child has "moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own."  Fillipone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

Because the trial court heard no testimony about the disputed facts relevant to daughter, the Appellate Division held that the trial court erred in failing to conduct an evidentiary hearing to resolve those contested facts and remanded to the trial court to conduct such a hearing. 

Despite the agreement reached by and between mother and father that daughter is now emancipated, father may still have a duty to provide financial support for daughter, to be determined by the outcome of the plenary hearing.  While daughter had no say in the original agreement reached by her parents and in the Consent Order they later entered into, she did have the right to file an application with the court on her own behalf seeking relief from the obligation that arises out of the parent-child relationship.  A child's right to support cannot simply be contracted away by that child's parents.  Parents have an obligation to support their children and in NJ this duty of support may include payment for college.

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It’s that time of year. High School seniors all over the country are making that agonizing decision, “Which college should I go to?”  While the kids are choosing schools, parents are thinking, “how will I pay for it?” Financing college is a challenge in the best of circumstances, but for families in which parents are divorced or separated, the issues become particularly difficult. 

New Jersey courts will, in appropriate circumstances, compel both parents to contribute towards the college or vocational educational expenses of their child. This is in recognition of the fact that in today’s day and age, a college or vocational education is becoming a necessity. In the absence of an existing agreement, New Jersey Courts will conduct an analysis considering several factors. The New Jersey Supreme Court, in the case of Newburgh v. Arrigo, 88 N.J. 529 (1982) set forth the basis upon which parents can be ordered to contribute towards college expenses.

When a child has suitable scholastic aptitude for the pursuit of a college education and continues to exhibit that aptitude throughout his college career, the court will examine:

1. Whether the parent if still living with the child would have voluntarily contributed to the cost of the requested higher education;
2. The effect of the background, values, and goals of the parent and 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 the higher education;
4. The ability of the parent to pay the cost;
5. The relationship of the requested contribution to the choice of the school and 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 the child’s responsiveness to parental advice and guidance; and
12. The relationship of the education requested to any prior training and the overall long-range goals of the child.

After reviewing these factors, if a court finds that contribution for college is appropriate, it may impose some or all of the following conditions:

1. All savings accounts earmarked for the child’s education shall have been exhausted;
2. Scholarships, loans, grants, and any other financial assistance shall have been applied for in reasonable fashion. The parties and the applying student shall cooperate in this regard;
3. Reasonable contribution shall be made by the child towards the education costs from summer employment;
4. Each of the parties shall have an equal say in the choice of higher educational schooling;
5. There shall continue to exist the customary parent-child relationship as currently exists;

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On March 27, 2008, the Appellate Division released the decision in Gotlib v. Gotlib.  This is a reported decision which means that it is precedential and must be followed by courts in the future. 

In this case, the plaintiff/ex-wife filed a motion seeking enforcement as to unreimbursed medical expenses and the payment of college expenses. She also sought to invalidate defendant/ex-husband's transfer to a third part for his share of the marital residence.

As to the issue of medical expenses, the parties were required per their Judgment of Divorce to equally share in these costs.  The plaintiff sought more than $23,000 in medical expense arrears, going back to 1996.  These expenses included those that were already awarded to her in 1997 when she was required to file an enforcement motion.  Though she was successful in the motion, the defendant never paid.  The defendant argued that plaintiff waived her right to enforce the Judgment's clear provisions requiring each party to pay one-half of the children's un-reimbursed medical expenses because she did not consult with him before the children visited certain physicians, and did not bill him on a monthly basis, as required by the Judgment.

The Appellate Division disagreed holding that a parent's obligation to pay un-reimbursed medical expenses should be deemed by a court reviewing a motion to enforce litigant's rights as an essential benefit to the parties' children. In this light, the right to receive these payments belong to the children, and is therefore is not subject to waiver by a custodial parent. That said, the non-custodial parent retains the right to question the reasonableness of any individual medical expense.

The Appellate Division made some interesting comments as to how parents should ideally act after a divorce:

"A parent from whom financial contribution is sought nevertheless retains the right to challenge the reasonableness of the medical expenses. Cooperation, discussion and consultation should be the guiding principles in any decision involving the welfare of the parties' children. In deciding what type of medical treatment is required, the need for the parties to behave and act like parents is paramount. This may require them to subordinate their adversarial interests as litigants in favor of their children's welfare."

They also set forth factors that should be considered when assessing medical expenses, as follows:

"Some of the relevant questions to be addressed when considering the reasonableness of a reimbursement request are: (1) was the treatment medically necessary; (2) was the medical treatment in response to an unforeseen emergency requiring immediate action; (3) did the treatment involve elective or cosmetic medical services, and if so, was it in the best interest of the child involved to undergo such treatment; and (4) in cases of elective or cosmetic medical treatment, was the decision economically sound, given the parties' financial resources. This list is by no means an exhaustive recitation of the issues to be considered in every case. These cases are, by necessity, factually sensitive. A proper resolution requires careful attention to the salient facts."

As to the college issue, the Appellate Division reversed the finding that the parties should equally share the costs remanded the matter to the trial court  to make factual findings, after conducting a plenary hearing, guided by the factors outlined in Gac v. Gac and Newburgh v. Arrigo. The reason for this was that the Judgment was silent as to how the parties would divide higher education expenses, however, in arriving at his decision, "the motion judge did not address the Newburgh and statutory factors reflected in N.J.S.A. 2A:34-23(a) ,,, The court simply appears to have divided the expenses equally."  In addition, the Court was concerned because the plaintiff also did not seek contribution from defendant until long after the expenses had been incurred, "thereby excluding him from the decision making process of whether his son should attend Curry College or whether his daughter should attend Ba'er Miriam Yeshiva, both private schools. (citations omitted).  Participation by both parents is an essential factor under Gac, expressly required by the JOD, and should have "weigh[ed] heavily against the grant of a future application. (citations omitted)."   

In Gac, a father was not required to pay for college because of similar reasons as in the case above.  This seemingly creates a contradiction in how medical expenses and college expenses are treated.  Seemingly, reimbursement for medical expenses cannot be waived for lack of prosecution of the arrears.  On the other hand, contribution for college costs can seemingly be waived if a parent waits until after college is completed to seek reimbursement.  The distinction, at least in this case, is that apparently, at least as to the medical expenses, the defendant was given the explanation of the medical expenses and the proofs near the time they were incurred and/or the defendant had knowledge of them - even if exact compliance with the Judgment was not made by the plaintiff. 

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