More and more, when discussing the payment of college education expenses with clients for their children, I am being asked, “What about graduate school?” The guiding principal behind that question, I suppose, is that, in New Jersey, it is well-settled that absent extenuating circumstances, both parties to a divorce have an obligation to financially provide for their children’s college educations. By that logic, if a child seeks an advanced degree, don’t both parties have an obligation to financially contribute to those educational costs as well?
The question of whether a graduate degree is the new undergraduate degree is a debatable one, sure. But in a recent unpublished (not precedential) decision, J.C. v. A.C., the New Jersey Superior Court determined that even though divorced parents have an obligation to contribute to their children’s pursuit of a college degree in ordinary circumstances, this doesn’t mean that there is a continuing obligation to contribute to the child’s pursuit of a graduate degree.
The pertinent question here is whether the child is emancipated, i.e., whether the child has the ability to support him or herself. New Jersey generally deems children to be unemancipated, even if they are over the age of 18, if they are attending college full time. This is because our courts have established that a child attending college is generally not capable of supporting him or herself yet. But, as Judge Jones discusses in J.C., the same cannot necessarily be said of a child who has already obtained a college education and has a college degree. The Court cannot simply look at graduate school as an extension of undergraduate education, because there are clear differences between a college student with only a high school degree, and a graduate student with a college degree:
First, as previously noted, a graduate student has usually and most critically already obtained a bachelor’s degree, evidencing an enhanced ability to start taking independent responsibility for his or her own life.
Second, a graduate student who already has a bachelor’s degree – as compared to an undergraduate student with only a high school diploma – may logically and inherently more marketable [sic] in certain instances, an therefore reasonably expected to utilize the degree and apply for jobs where he or she can earn an independent living, even if such jobs may pay less than certain positions which require a master’s degree or other advanced degrees that the student can obtain on his or her own at a later date. [. . .].
Third, the distinction between an undergraduate student and a graduate student has been implicitly recognized by the Federal government itself. When an undergraduate student applies for financial aid through FAFSA, the FAFSA application form generally requires applicants to disclose parental income as part of the information necessary to determine eligibility and the amount of financial aid the applicant may receive. Graduate and professional degree students are generally considered independent students and are not required to supply information regarding parental income on the FAFSA application. [. . .].
Fourth, absent highly unusual circumstances, a graudate student is, from a chronological standpoint, generally older than the undergraduate student, and therefore naturally expected to be more mature and independent in a manner consistent with his or her years and life experience. With such years are naturally expected to come the ability to be self sufficient, outside the sphere of parental influence. [. . .].
Fifth, from a standpoint of sensibility, one may legitimately question just how far the concept of extending emancipation and child dependency beyond college graduation actually goes. [. . .]. Does a parent have to financially maintain a “child” who is 25 or 30 years old, just because the child chooses to seek further advanced degrees, and the parent happened to have had an unsuccessful marriage and divorced the child’s other parent many years earlier? Does such a result make practical sense?
The question then, says Judge Jones, must be: is this college graduate emancipated, or not? Judge Jones’ analysis above suggests that the Court should, in most circumstances, consider a college grad to be capable of supporting him or herself – even if he or she might want to pursue a higher education degree that would allow him or her to support him/herself, perhaps, on a higher salary – and therefore be emancipated. The burden of proof, then, should lie with the applicant seeking a parent’s contribution to graduate educational expenses to show that it is “appropriate, necessary, and equitable under the circumstances” to require continued support by way of an order requiring a parent to help pay for grad school. The pertinent factors in that analysis would be the oft-cited Newburgh v. Arrigo factors:
- Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
- The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education;
- The amount of the contribution sought by the child for the cost of higher education;
- The ability of the parent to pay that cost;
- The relationship of the requested contribution to the kind of school or course of study sought by the child;
- The financial resources of both parents;
- The commitment to and aptitude of the child for the requested education;
- The financial resources of the child, including assets owned individually or held in custodianship or trust;
- The ability of the child to earn income during the school year or on vacation;
- The availability of financial aid in the form of college grants and loans;
- The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
- The relationship of the education requested to any prior training and to the overall long-range goals of the child.
These, combined with other equitable factors for consideration – most obviously, the inherent differences between a high school student seeking contribution to undergraduate expenses and a college grad seeking contribution to graduate school expenses – have to be considered when determining whether it is fair for a parent to have to contribute to graduate education expenses.
But wait…what about the new statute?
The J.C. v. A.C. case recognizes that, effective February 1, 2017, there will be major changes in the law of emancipation and termination of a parent’s obligation to pay child and other financial support under N.J.S.A. 2A:17-56.67. Under that statute – which will apply retroactively as well as prospectively – a parent’s obligation to pay child support will terminate by operation of law when a child reaches the age of 19, unless a court orders an extension of payment which shall not extend beyond the child’s 23rd birthday. If a child is enrolled full time in college after he or she reaches the age of 19, then child support will not be terminated until that child reaches age 23, by which time the average college student has indeed graduated.
That’s a long-winded way of saying: If your kid is in college, child support and a parent’s obligation to pay for college will continue until your kid turns 23. Then, there can be no more child support.
BUT – and this is a big “but” – the amended statute provides that even though “child support” – i.e. payments from one parent to another for the support of the child – terminates, a child over the age of 23 will be able to seek a court order requiring “other forms of financial maintenance” from a parent. In other words, a child over the age of 23 can still ask the court to require a parent to pay his/her expenses, it just won’t be called “child support.”
I recently moderated a Continuing Legal Education Panel where the panelists and I discussed this impending new statute, and this very issue was raised: Under the new statute, could a 23 year old (or older!) “child” apply to the Court for another “form of financial maintenance” from a parent in the form of contribution to graduate education expenses? And could that child be successful?
Judge Jones’ opinion certainly provides guidance on that question and suggests that not every claim by a child seeking a parent’s contribution to graduate school expenses should be granted under the new statute; the test will be whether the child can meet his or her burden of proof to show that an order requiring a parent to contribute to grad school expenses is “appropriate, necessary, and equitable under the circumstances” based upon the Newburgh factors and any other equitable considerations, including most importantly the general distinctions that can be made between a high school student seeking contribution to undergraduate expenses and a college graduate seeking contribution from a parent for grad school expenses.
Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or email@example.com.