Signed into law on January 19, 2016, New Jersey’s emancipation law is set to take effect on February 1, 2017 and will apply to all child support orders issued prior to or after its effective date.

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One of the highlights of the new law is that it will dramatically impact when and how child support orders will terminate. Specifically, it provides that unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support will also terminate automatically when a child reaches 19 years of age unless (a) another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age; (b) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or (c) the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

Just ahead of the effective date of the statute, Judge Jones issued an opinion on the effect of one child’s emancipation in Harrington v. Harrington. In Harrington, the parties divorced in 2012. The parties have three children, all of whom were unemancipated at the time of the divorce. As such, the parties’ settlement agreement provided that the father would pay the mother the sum of $240 per week in child support for all three children. In what would become a decisive fact in the case for Judge Jones, he noted that the child support was unallocated, rather than broken down or allocated into specific dollar amounts for each child – either on a one-third per child basis or otherwise.

Following the divorce, the father paid child support as agreed without requesting an modifications, even when their oldest child began college. In September, 2014 the parties mutually agreed to emancipate their two oldest children. Two orders were entered confirming the emancipation, but the amount of child support that the father paid remained the same. Further, neither party submitted or exchanged updated financial information or filed any motion.
In June, 2015, the last remaining unemancipated child graduated high school and decided not to proceed to college. The father continued to pay $240 per week in child support nonetheless, without any objection by either party.

In February, 2016, a year-and-a-half after the first two children were emancipated, the father filed a motion for the retroactive allocation of child support to $80 per child, and downward modification of one-third per emancipated child, effective September, 2104. He also sought to emancipate the youngest child and terminate his obligation. The mother consented to the emancipation of the youngest child, but opposed the retroactive modification that the father sought.
With regard to the issue of retroactive emancipation, the Court initially grappled with which law to apply in this situation: should it apply the anti-retroactivity statute which prohibits the retroactive modification of unallocated child support, or does the case law with regard to retroactive emancipation apply?

In reaching its decision, the Court devised a set of equitable factors that should be examined:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

In applying the above factors to the present case, the Court considered the following factors: nearly a year and a half passed between the effective date of the emancipation for the older two children and the filing of the father’s motion; there was no reason provided to explain the delay in filing; during that period, the father continued to pay the same level of child support to the mother; there was no evidence submitted that the mother or the children engaged in any type of fraud; the mother and children communicated facts that would have led to a modification of support; and, a retroactive modification of support to 2014 may be unduly complicated given the fact that no financial information was submitted for the period of time in question – 2014-2016.

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or

With summer just beginning, many people have visions of swimming pools, beaches and family vacations. Others in New Jersey have visions of Sallie Mae, tuition bills and book fees.

After four years of what has become obligatory college contribution pursuant to the mandates of Newburgh v. Arrigo, many parents in the state are then faced with the daunting possibility of an additional 3-4 (maybe more?) years of opening their wallets and contribute toward the cost of graduate school; sometimes for their 24, 25, 26 or 27 year old children who are not yet considered emancipated pursuant to our current laws. Many times, child support also continues during that period.

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Indeed, New Jersey courts have recognized that completion of undergraduate education is not the determinative factor for either declaring emancipation or terminating child support. Many times, the determination as to whether child support would continue, and along with it the parents’ obligation to contribute toward the cost of the child’s education, focused largely on the whether the child, is “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own”.

New Jersey is in fact one of the few states in the country that still requires divorced parents to pay for their children’s college educations. Even fewer require contribution toward graduate school. However, New Jersey remained an outlier in that regard.

For example, in the 1979 case of Ross v. Ross, the Chancery Division declared that the parties’ daughter could not be considered emancipated as she was attending law school after obtaining her undergraduate degree.

As recently as 2010 in Mulcahey v. Melici, the Appellate Division upheld a trial court’s determination that a 23 year old child was not emancipation and was entitled to contribution toward her education costs as well as continued child support. Eric Solotoff previously blogged about this case in his post entitled: I Don’t Have to Pay for My Kid’s Graduate School, Do I?

The New Jersey Emancipation Statute, signed into law on January 19, 2016, is set to take effect on February 1, 2017, and may change the way courts view graduate school contribution.

Whereas previously emancipation was a fact specific inquiry focusing on the level of independence of the child, now, child support “shall not extend beyond the date the child reaches 23 years of age.”

Does this mean that the possible obligation to contribute toward a child’s graduate school education is a thing of the past? If emancipation must occur by the age of 23, and the obligation to contribute hinges on the question of whether the child is emancipated, how could a parent be required to contribute to graduate school?

Another interesting question will be whether an agreement to pay for graduate school at the time of the divorce, pre-statute will be enforced.
Recall also the New Jersey Rutgers University professor who was ordered to pay more than $112,000 for his daughter to attend Cornell Law School in 2014 because he had agreed to contribute in his divorce settlement agreement, but failed to place any cap on tuition.

The enforcement of agreements to contribute toward college is extensively addressed in Robert Epstein’s – Appellate Division Addresses Enforceability of Settlement Agreement as to College in New Published Decision – but it will be interesting to see if the same principles are applied when it comes to graduate school.

We will keep you posted as the case law is decided.

Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or

The Appellate Division’s newly published (precedential) decision in Avelino-Catabran v. Catabran provides another lesson to practitioners and litigants about the language used in settlement agreements and how such language, if unambiguous and without basis to modify, will likely be upheld in matrimonial matters.  The specific dispute involved college payments for the parties’ older child and child support, but the importance of this decision stems from the enforceable nature of the settlement agreement itself rather than what portion of the agreement was at issue.

Contract pic

Here are the relevant facts that you need to know:

  • The parties were married on June 18, 1993 and divorced on August 14, 2002.  A settlement agreement addressing custody and support of the children – 21 and 17 at the time of the appeal – were addressed therein.
  • The agreement provided that the parties shared joint legal and physical custody of the kids, with mom being designated as the parent of primary residence during the school year and dad during the summer.
  • The agreement also required dad to pay $137 per week in child support, and the parties seemingly agreed to increase the obligation to $800 per month in 2009.
  • As to college, the agreement provided that the parties would be equally responsible for “net college expenses – those remaining after the children applied for financial assistance.”  The agreement provided:
  • The minor children shall have an obligation to apply for any and all scholarships, student loans, grants and financial aid that may be available to help defray the cost of each child’s attendance at college.  After deductions for scholarships, student loans, grants and financial aid, the parties agree to be responsible for the net college educational costs of the minor children.  Net college cost[s] will be split equally by the parties.  (language was deleted providing that the parties respective obligations were to be determined pursuant to their respective abilities to pay at that time).

  • In June 2004, the parties agreed to change the custody and parenting time arrangement, eliminating alternating weekends with the kids living full-time with mom during the school year and with dad during the summer.
  • In May 2011, the custody and parenting time arrangement was again changed when mom and her new husband moved to Switzerland with the kids.  To facilitate the move, dad signed a letter at the time providing that mom had sole custody of the kids “[f]or the duration of, and subject to, their residing in Switzerland.”
  • After graduating from high school, the oldest child decided to attend NYU starting in Fall 2012.  Total cost of attendance was approximately $62,000, but the school offered substantial financial aid (including a large scholarship, a work study offer, and student loans), the total value of which came to approximately $23,000.  The package also included PLUS loans worth approximately $39,000, which were defined by the award letter as “the maximum amount . . . . [a] parent may borrow.”
  • The child accepted the full scholarship, work study, and student loans offered to her.  In an email sent at that time, dad asked mom, “how much Parent PLUS Loan should we borrow?” and suggested they borrow approximately $13,000 to cover mom’s share of the balance owed for college.  Mom responded by telling dad to “Please borrow this money on behalf of Catherine (the older child)”.  As a result, dad accepted the available PLUS loan.
  • In October, 2012, dad filed a motion seeking to modify child support to reflect a split-parenting arrangement, an order requiring mom to pay half of the child’s net college expenses, and judgment against mom for the amounts due on the PLUS loan and owed to NYU for the Spring 2013 semester.
  • Mom argued that no funds were owed by her for college costs because NYU provided the child enough financial aid to cover the total expense.  Financial documents submitted showed that mom’s gross income was approximately $225,000 annually and dad’s was $113,000 (they each earned $73,000 at the time of the divorce).
  • In May, 2013, the court entered an order directing mom to contribute to college expenses, but required the parties to submit their financial documents to determine what said contribution should be.  It also directed the parties to submit pay stubs and tax returns to determine child support moving forward.  In so doing, the court found that the financial aid package did not cover the full college cost, the PLUS loans were available only to mom and dad, and dad had established changed circumstances warranting a child support modification.
  • Notably, the court found that, based on the above-described emails, mom was aware of the financial aid package and that the loans dad was taking were to cover her share of the college costs.  NYU was also deemed an appropriate college choice by the child because of the “employment opportunities offered to NYU graduates” instead of another school preferred by mom.
  • Mom moved for reconsideration of the trial court’s order.  The motions were denied in January 2014.
  • During the next series of months, the parties submitted various financial disclosures to the court.  Mom claimed she could not afford to pay for college, and she had filed for Chapter 11 relief in bankruptcy court approximately six months prior.
  • In May 2014, the court ordered mom to contribute 50% of the net college expenses.  It also modified child support, directing dad to pay $186 per week for the younger child, and mom to pay $281 per week for the older child (resulting in a net payment of $95 per week to dad).  In so doing, the court found mom had sufficient resources to contribute to college, considering the requisite legal factors (the Newburgh factors) in so doing, and relied on the language of the original settlement agreement calling for an equal payment obligation.
  • As for child support, the court, in that same order, found that the children’s respective living arrangements (older child at college and younger child in Switzerland) merited a modification.  In so doing, the court relied upon the Child Support Guidelines, Rule 5:6A, and dad’s support proposal (not included in the order).  In so doing, the court also attached a Child Support Guidelines Sole Parenting Worksheet for two children in a “split-parenting situation” (for multi-child families where one parent has custody of one or more children, and the other parent has custody of the other children).  Support was modified retroactive to October 2012 when dad first filed his motion.
  • Mom appealed the relevant order.

i.     Decision on College Expenses

In affirming the trial court’s finding as to college, the Appellate Court found that the lower court properly enforced the unambiguously written original settlement agreement requiring mom to be equally responsible for the kids’ college expenses because there was insufficient evidence of unconscionability, fraud, or changed circumstances (despite mom’s bankruptcy filing) that would merit a deviation from the agreement.  The Court reiterated the obligation of divorced parents to contribute to the higher education of children who are qualified students (notably, the court referenced a general parental obligation to pay – not just for divorced parents, which has been a hot topic of discussion in recent years).

  • Notably, because the parties agreed on how to pay for college in the settlement agreement, the trial court was not required to apply all of the Newburgh factors in rendering a determination and was simply required to enforce the agreement/contract as written.
  • As to the PLUS loan, the Appellate Division disagreed with mom’s position that the loan was secured for the child because the child was not eligible to apply for or receive the loan herself.  “Therefore, the PLUS Loans cannot be considered a student loan or financial aid available to [the child] for which she had to apply, as contemplated by the parties.  The court correctly determined that [mom] authorized the loan and she was responsible for same.

ii.     Decision on Child Support Modification

The Appellate Court affirmed the trial court’s determination (without a hearing) that the older child living at college and spending her time off with dad instead of with mom in Switzerland was a sufficient changed circumstance to merit a support modification.  There was also no dispute that the parties’ incomes had substantially changed since the divorce.  The Appellate Court, however, agreed with mom’s position that the trial court erred in calculating child support by:

  • Failing to consider the statutory child support factors as required by Jacoby v. Jacoby when a child lives away from home while attending college (at which point the Guidelines no longer apply);
  • Failing to properly calculate the support award and issue a clear statement of reasons for same; and
  • Relying on dad’s use of the Guidelines and its incorporation by reference of dad’s proposed calculation.

Primarily, the trial court failed to calculate the Guidelines-based amount and specifically provide why it was deviating from same in the best interests of the child.  “[A] court cannot simply attach a guidelines worksheet in lieu of providing a statement of reasons.”  In so holding, the Appellate Court noted, “The court’s statement regarding its abdication to [dad] of its obligation to calculate support did not satisfy its obligation to provide a statement of reasons for its decision.”

Avelino-Catabran provides a useful analysis for practitioners and litigants when it comes to drafting agreements and, in this particular instance, what will and should be included in the college expense portion of same.  Most of the agreements I have seen and drafted are largely similar on this topic and, by excluding the PLUS loans (which were not identified in the agreement) from the equation, the Court ensured that divorced parents cannot essentially abdicate their responsibility to provide for a child’s college expenses.


Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*image courtesy of

On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that impacts upon child support and when/how it terminates.  The new law, which takes effect 180 days after its signing, is applicable to all child support orders issued prior to, or, or after its effective date.  Much of it codifies existing case law, but alters, in part, the prior rebuttable presumption that child support terminates when a child reaches age 18.  The language specifics and nuances will most certainly in a manner similar to the amended alimony law, future litigation over what such language means and how it should be applied.

bill becomes law

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child – who is less than 19 years of age – marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

  1.  another age for such termination is specified in a court order;
  2. the parties consent and the court approves the continuation of support until after a predetermined date; or
  3. child support is extended by the court based on an application filed by a parent or the child prior to reaching age 19.

A parent or child may also seek the continuation of child support beyond 19 years of age under the following circumstances:

  1.  the child is still enrolled in high school or other secondary program;
  2. the child is participating full-time in a post-secondary education program;
  3. the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued child support; or
  4. other exceptional circumstances as may be approved by the court.

Interestingly, if a court orders the continuation of child support, it must also provide in the order “a future date upon which the child support obligation will terminate or a date upon which the court will review the circumstances of the parties and children.”

Matters involving child support obligations supervised by the Probation Division will require Probation (and the State IV-D agency) to provide both parents with at least one notice of proposed termination and instructions on how to seek a continuation of child support.  Such notice is to be provided no less than 90 days prior to the termination of support under the new law.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue until modified by court order.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date subject to the approval of the court.”  Prior language that did not make its way into the final law focused on utilizing “capped” age of 23 to terminate support, which is often found in settlement agreements as a sort of “catch all” provision as to when child support will end.  I have had adversaries argue to me – when, of course, it suits their client’s position – that using the age of 23 as a cap to end child support is unenforceable as against public policy.  The new law confirms, however, that such a cap could be enforceable, and that it – like any other agreed upon language regarding a support termination date – is subject to the court’s approval.   Hopefully that will limit litigation that can occur surrounding such provisions in a settlement agreement.  To that end, practitioners should also consider incorporating references to the new law in the emancipation portions of their settlement agreements.


 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

It all started with the 1982 Supreme Court case of Newburgh v. Arrigo.

That is the case that lawmakers, judges and attorneys alike point to when they are asked the age-old questions “why do divorced parents have an obligation to contribute to college, but intact parents do not?”  Eric Solotoff blogged about this conundrum on March 13, 2014 when Rachel Canning’s story hit the news (remember – that teen who sought and failed to compel her married parents to contribute to her college education?).

In addition to the factors it sets forth that a court must consider in allocating college contribution, a main takeaway from Newburgh is as follows:

In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.

The thoughts conveyed by Newburgh – that college is a necessity – have been echoed throughout the nation.  In a 2013 HuffPost/YouGov poll, 53 percent of respondents agreed that a college education was necessary in order to get ahead in life, compared to just 28 percent who said it was not.


Since Newburgh, it has become axiomatic in New Jersey that parents must split in some fashion – i.e. not always 50/50, but full contribution allocated between the parents – their children’s college education upon divorce.  It became obligatory, the right of the child, just like child support for each child whose parents separated.

Newburgh became even more oppressive for some when in 2000, Finger v. Zenn overturned the so-called “Rutgers Rule” set forth in 1968 in Nebel v. Nebel, which limited a parent’s mandatory contribution to the amount which would have been required to send the student to a state university such as Rutgers.  Suddenly, parents were faced with astronomical college tuition obligations to costly private or ivy league universities.  These stresses were only heightened as college tuition continued to rise through the early 2000s.

But in recent years, particularly during the recession, and with the skyrocketing costs of private universities, this rule of financial contribution has become a rule of potential financial ruin.  I have heard and observed clients in distress at the prospect of paying for college.  When there is not enough money to go around for even daily expenses, how could a court mandate that college takes priority?

Well, a new superior court case, published on June 13, 2014 – Black v. Black – tackles these very interesting and real issues head on.  The case presented three legal issues regarding a divorced parent’s obligation to contribute to the cost of a child’s college education, when he has previously agreed to do so in a marital settlement agreement:

1.         What happens when there is a damaged relationship between a college-age student and a parent?  Should the parent still be obligated to provide ongoing financial assistance?

2.         Whether a parent should be obligated to pay for the cost of an expensive private college over a more modestly priced state school; and

3.         Whether the court can consider a student’s younger siblings of relatively close age who are likely to attend college in the near future as part of the college contribution analysis.

In this blog, I am only touching upon the last two inquiries.  The first one – the relationship between the contributing parent and the college student – will be a topic for a later blog.

One of the financial hurdles immediately recognized by the court head on in this case was that there was not a whole lot of money to go around.  The custodial mother was imputed an annual income of $20,000 while the non-custodial father was imputed an annual income of $60,000.  The father agreed to pay the mother $300 per week in alimony, along with child support under the New Jersey Child Support Guidelines for three children, who at the time of the divorce were 16, 13 and 10.  Additionally, the parties jointly stipulated that they would share in the cost of their children’s future college costs.

In the years that followed, there was a breakdown in the relationship between the oldest child and the father, however, the relationship with the two younger children remained intact.

In 2012, the oldest child graduated from high school and was accepted into Rutgers University at an annual cost of $12,000, most of which would be covered by grants, scholarships and loans.  The parties disagreed as to the amount of contribution from each parent, with the mother apparently requesting that the father contribute the vast majority of the uncovered costs.  It appeared that the father’s main objection centered around the child’s unwillingness to repair their relationship.

As a result of the disagreement, the father refused to contribute, leaving the mother to raise $4,000 for the child to attend his freshman year.

The child exceled during his first year of study.  At the conclusion of his freshman year, the child set forth his desire to transfer to the University of Miami – an out of state, private institution – so that he could pursue a major in Marine Biology.  The price tag for this transfer: $55,000 per year, less $33,000 in estimated financial aid, leaving an uncovered balance of $22,000 per year.

In assessing the father’s college contribution, the court very closely considered “the availability of colleges and universities which are significantly less expensive, and thus more reasonably affordable for some parents, than a student’s school of ‘top choice.’”

In examining the issue, the court specifically stated that “[t]he case of Finger v. Zenn…does not hold to the contrary.”

The court said that Finger only stands for the proposition that the family court is not prohibited from ordering a non-custodial parent to financially contribute to a child’s college costs in an amount exceeding the cost of attendance at a state college.  It specifically rejected the interpretation some courts have espoused that when a student seeks to attend a private university, the comparative cost of tuition at Rutgers or another less expensive state college is, as a matter of law, immaterial to the analysis.

Poignantly, the court recognized:

In intact families, where mothers and fathers address such issues outside of divorce court, the comparative expenses and affordability of tuition at different colleges is usually a significant factor for consideration by financially responsible parents and students alike. The issue of cost is no less important in families of divorce, particularly in cases where neither parent can afford a blank checkbook approach to education.

Recognizing the above, the Court came to the conclusion that regardless of what school a student personally wishes to attend, no parent should be expected to contribute more than he or she can reasonably afford.

The Court then went on to examine another financial reality posed by the parties’ situation: when there are other, younger children in the family, who are good students and who are relatively close in age to an older, college-age sibling, this can be a relevant factor in determining how much money the parents should apply towards the oldest child’s college education?

There are real economic implications to a parent’s decision to help fund a first child’s education, especially when there is no money specifically set aside for the expenditure.  The parents may potentially be sacrificing the educational opportunities of the younger children in favor of the older child.

As a result, the Court ultimately found that the parties have a reasonable ability to contribute $7,500 per year – $3,375 from the mother and $4,125 from the father (45%/55% split) – which was to be allocated between three college savings plans to be established and earmarked for all three children’s potential college costs.  This would result in a total contribution of $60,000 ($7,500 * 8 years), or $20,000 per child for his or her college education.

This opinion is novel for parents and the legal community alike.  Oftentimes, judges may be quick to strictly adhere perceived interpretations of case law based upon the prevailing legal practice, all the while ignoring the harsh economic realities posed by their decision.

Recall the Rutgers professor who agreed to contribute to the cost of graduate school and then got saddled with a $120,000 for his daughter to attend Cornell Law School?

The judge in this case, however, was not afraid to go out on a limb and deviate from awarding an amount that would have been financially devastating for both parents, and potentially for their younger children.

This case is especially instructive in drafting divorce agreements, so that litigants and their children can avoid long, protracted battles that ultimately do nothing more than deplete funds that would otherwise be contributed toward college. For example specifying the following in your divorce agreement could cut off much potential conflict at the pass:

1.         Percentages of Contribution.  Especially if your child is close to college-age, specify what percent each parent will contribute.  This will avoid the nickel and diming in the future.

2.         Expenses Covered.  Will the parents be responsible for room and board?  What about books? SAT and college preparatory classes?  Years abroad?  Set forth in your agreement exactly which expenses will be covered.

3.         Type of School.  Should the cost of tuition be capped at a state university or would you like to see your child go on to a prestigious, yet pricey, private school?  Reasonably decide what you can afford and cap the contribution if you believe paying for private college will impose financial stress.  Again, this does not mean that your child cannot attend the private school; he or she may just have to bear some of the cost.

4.         Establish 529 Accounts Early On.  If you have more than one child, a 529 account may be most appropriate if limited funds need to be allocated equally.  You may even want to stipulate to a joint 529 account in your divorce agreement, with an agreement by each party to contribute a certain amount each year. Remember, money placed in a 529 grows tax free and you can take it out if your client receives a scholarship, penalty free.  It is a win-win all around.


Baer, Eliana T.Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or

The Canning case has dominated the news in New Jersey and points beyond over the last two weeks.  You know, the so-called “spoiled teen” that moved out of her parents house, and among other thing, sued to have them pay for college.  Robert Epstein has blogged on it several times on this blog. While it was reported today that the matter may have been amicably resolved, the trial judge and legal pundits far and wide spoke of her uphill battle to succeed in the case.


Graduation Concept Stock PhotoPhotos courtesy of

But why?  The pundits again point to the constitution.  The constitution, they say, prevents government from intruding in the care and parenting decisions of fit parents.

Page one of the original copy of the Constitution

But we know that government can act to prevent harm.  There are laws governing car seats, education and a whole host of other things that infringe on a parents rights as to their children.  Fit parents cannot provide alcohol to their children before they are of legal age. In fact, we know from the grandparent visitation cases, that the constitutionally protected decisions of fit parents to deny grandparental access can be overcome by a showing of harm to the children.  Some of the pundits have suggested that children of divorced parents will be harmed if their parents are not compelled to pay for college – that’s not quite right – but query why children of in tact families can be harmed if their parents refuse to pay for college – and that is ok – but children of divorce need some special protection from the exact same “harm”?

So where does the obligation for college come from?  The Supreme Court case of Newburgh v. Arrigo is most often cited as the basis for this.  Though I have read the case dozens of times over the years, I read it again when the Cannings invaded our consciousness. Here is what Newburgh actually says:

Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education” as a flexible concept that can vary in different circumstances. …

In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school. (Emphasis added)(internal citations omitted).

So does Newburgh speak to harm?  No, it says that college education is a necessary.  Does the case limit the obligation to provide this necessary to a divorce?  I don’t know – as noted above, the case simply notes that the issue frequently arises in the context of divorce.  You could certainly argue that Newburgh doesn’t limit the issue to divorce cases.  But then Newburgh speaks to the concept that the obligation attaches to those who are “financially capable” (often honored in the breach because many judges have treated the obligation for college absolute even without financial capability but that is an issue for another day.)  That said, if the standard is financial capability, one could argue that in tact families are likely more capable that divorced families where the same income that once supported one household now has to support two homes.  If college is a necessary, does the denial of payment for college rise to the level of harm?

This leads me back to the question raised in the title – why do parents who are divorced have to pay but parents in in tact families do not?  I know, I know, the Constitution.  Maybe just maybe, the harm standard can be raised to overcome a fit parents decision to deny a child of this necessary.

Finally, the constitutional attack is rarely raised in this way, but from time to time, is raised by divorced parents who are forced to pay for college.  The court usually avoids deciding this issue.  That said, in many other states (and NJ is in the minority of states that require parents to pay for college), the obligation to pay for college was struck down on constitutional grounds – i.e. there is no basis to compel the obligation for divorced parents but not married parents.

While the Cannings may now be in our rear view mirror, hopefully for them and for the rest of us, I expect that this debate may rage on.


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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

We have written many times on this blog about the dangers of using social media in connection with an ongoing divorce, custody dispute, domestic violence matter, and more.  Apparently Rachel Canning, the New Jersey teen suing her parents for financial support and college payments, is not a subscriber to the blog.  If she were, she would know that creating a Facebook page to support her suit against her parents is only going to lead to trouble.


A quick review of the Facebook page reveals the following recent posts, which are believed to have been written by Canning herself:

In New Jersey (as in most states) parents are required to support their kids through high school unless legally emancipated, which I’m not. This means that they can NOT put conditions on me being at home, which they did. They can’t get out of this. The fact that they cut my tuition was also clear bad faith, and a breach of contract with the school. What did they expect me to do, drop out? I am absolutely amazed at some of the cruel (and legally ignorant) comments I’m reading here.

Suburban baby boomer types are the spoiled lot, they make massive amount of money a year, they are used to flying to luxury destinations when they want, and buy things that they don’t need, people should be inclined to see things Rachel’s way.We have been stunned by the financial greed of modern parents who are more concerned with retiring into some fantasy world rather than provide for their c…hildren’s college and young adult years.

In today’s economy there are no more meaningful jobs and without family help it’s usually military or bust. We see parents like this every day, children were always an accessory to them and nothing more, once that accessory grew up and went out of fashion, much like a marriage that people allegedly commit to, the child becomes a throwaway, that’s just how it is.

Not only have these, and other posts from Canning resulted in harsh responses from many page followers, but the posts themselves constitute potential evidence for her parents to utilize, and the trial judge to rely upon, when further rendering decisions in this matter.  The judge has already made some very strong statements against Rachel’s position, including commentary addressing the gross disrespect that he believes she has shown towards her parents.  The posts may, as a result, further tarnish her image and credibility, which may also be a factor in the Court’s decision making process.
Clearly Rachel has either taken it upon herself, or been advised by others, to use the Facebook page in an effort to sway public opinion in her favor.  Perhaps she is the litigant that I previously blogged about who is simply unable to stop herself, like many other people in today’s society, from using social media to post about anything and everything.  Considering the surprisingly massive attention this Morris County case is getting, she should think twice.  The potential negatives far outweigh any nominal benefits to be gained.

Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or


You may have heard about the hot news story that continues to gain traction nationwide where a New Jersey teen sued her parents in the Morris County Superior Court for financial support, private high school tuition, college payments, and attorney fees.  It even made the cover of today’s Star Ledger.  She is seeking an official declaration that she is unemancipated and, as a result, her parents are still obligated to support her.  The case has largely generated a public outcry, as people question how, based on the facts and circumstances at issue, a court could consider impeding on parents’ rights.

Rachel Canning, eighteen years old and a student at Morris Catholic High School (who has reportedly been admitted to seven different colleges), claims that her parents forced her to leave their home and that, as a result, she is unable to financially support herself.  Her allegations are certainly troubling, whether true or not, that her parents verbally abused her, and also threatened to physically do so.  Her certification to the court, signed under oath, claimed that she “had to leave to end the abuse,” that her parents stopped paying private high school tuition to punish her, and that they have redirected her college fund.


By contrast, her parents deny the abuse, and claim that Rachel left voluntarily because she did not want to obey their rules, such as being respectful, complying with curfew, and performing some chores around the home.  In fact, they are welcoming her back into their home.  They further claim that Rachel was suspended from school in October, 2013, shortly before moving out of the home, and, as a result, her parents indicated that she could no longer see her boyfriend (who was also suspended from school), and had lost her car and phone privileges.

When the punishment came down, her father claims that Rachel cut school again and ran away from home.  Rachel moved in with relatives of a close friend, and the lawsuit is being funded by a former Morris County Freeholder.  Interestingly, while Rachel’s parents have paid for Morris Catholic through the end of last calendar year, the school has indicated that it would not kick her out for unpaid 2014 tuition.

Notably, an investigation undertaken by the Division of Child Placement and Permanency (DCPP), which Rachel claims was initiated by the school, determined that her allegations of emotional abuse were unfounded.

Yesterday, March 4th, the Morris County trial judge, the Honorable Peter Bogaard, J.S.C., denied Rachel’s request for immediate weekly child support, thousands of dollars in attorney fees, and immediate reimbursement of her high school tuition.  The judge denied the high school reimbursement request because the school indicated that she could remain for her last semester without payment, and denied the request for immediate financial assistance because there was no emergency posed.  The judge did rule that her parents must continue to cover the child on their health insurance policy and maintain the status quo on all existing college savings accounts.

Another hearing is scheduled for April to determine other issues in the suit, including whether Rachel voluntarily left her parents’ home, and whether her parents are required to pay for college.  In so ruling, he admonished the child for her disrespectful behavior towards her parents, fault for which Rachel’s attorney attributed to her parents.

The case is newsworthy in asking a trial judge to determine whether parents have a support obligation for this child.  It presents one of those very “slippery slope” type situations where, if Rachel’s relief is granted, it could potentially open the door for kids everywhere to sue their parents for financial support.  Indeed, Judge Bogaard remarked during yesterday’s oral argument that this could open the door for a twelve year old to sue his parents for an X-Box, or another young child suing her parents for an iPhone, because everyone has an iPhone.

While Rachel’s allegations are concerning, that does not mean she is entitled to that which she seeks from the court.  Emancipation requires that a child be beyond the “sphere of parental influence,” but parents also have a fundamental right to parent their children without unnecessary interference.  Indeed, Rachel’s parents argue that the person funding her litigation is interfering with that very fundamental premise.  We have dealt with that very situation in the past, where a relative or family friend will fund a child’s litigation against parents for various forms of relief.

Further, while divorced parents in New Jersey are required to fund an unemancipated child’s college education, intact parents are not similarly required to do so.  Perhaps that is somehow unfair or incongruous, or some sort of equal protection issue, but it is the law.  A decision by the trial judge requiring the parents to pay for college, or somehow maintain the already existing college funds for Rachel, will certainly garner attention statewide, if not nationwide, and will undoubtedly lead to ongoing litigation between a child and her parents embroiled in a battle that has long since veered out of control.  The litigation is tragic, and hopefully this matter will soon come to an end so that this family can work on getting itself back together and moving on.


Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or


I am an advocate of resolving divorce and custody disputes and helping my clients make reasonable attempts to avoid judicial intervention.  It is less costly, less lengthy and allows litigants to make their own decisions regarding their children, finances, assets and debts.  However, the motivation for entering into a settlement agreement should not be solely for bringing about absolute “certainty”.  Litigation is exhausting and unpleasant.  It does not matter if the divorce or custody litigants are extremely hostile with one another or relatively amicable.  Many of my clients tell me that the feeling of uncertainty is most exhausting. I suppose that it is that feeling of uncertainty that motivates some litigants to insist on provisions resolving issues that may or may not arise in the future.  Some litigants want to resolve how each parent will pay for college of their children even though their children are not yet even in high school at the time of the divorce.  Some insist on provisions “locking-in” support obligations.  Others press for absolute parenting time schedules. However, people who demand settlement provisions that are intended to resolve future events may regret it at the time the future event occurs.

In the example where college contribution amounts are pre-determined before the child is close to college age, what happens if at the time that the child is getting ready to attend college he or she is estranged from a parent?  What if the parents do not agree on the school either for financial reasons or because one parent does not agree that attendance at the chosen college is in the child’s best interest?  Can the pre-determined college contribution amount be modified?  Getting the answer to these questions result in litigation that the parties hoped to avoid.  Depending on the circumstances and other factors that may be weighed in by the Court, an agreement to pay a set amount or a set percentage towards college expenses may be upheld much to the dismay of one parent.

It seems very appealing to some to “lock-in” an alimony amount in a settlement agreement regardless of future changed circumstances.  It may be appealing to the person receiving the alimony because the person has a set amount to rely upon.  It may be appealing to the person paying the alimony because the person is assured that any increase in income will not result in an increase in alimony.  In recent years, the downturn in our economy impacted many people.  Those in an alimony lock-in situation may have felt the financial impact of the downturn but are nonetheless entitled to receive or obligated to pay the locked-in alimony amount.  They will not get more even if they need it or be obligated to pay less even if they can no longer afford the set alimony amount.

Recently, the New Jersey Appellate Division rendered a short unreported decision (non-precedential) in Brucia v. Gamble regarding modification to a school year parenting time schedule which was negotiated and agreed upon when the child was not yet even school age.  It is unclear from the decision if one parent insisted on the provision or if both parents desired to “pre-resolve” the school year parenting time schedule even before their child was school age.  In any case, clearly, the provision left one litigant regretting entering into the “pre-resolution”.  In Brucia v. Gamble, at the time of the divorce, plaintiff and defendant’s son was 2 years old.  They entered into a settlement agreement that included a provision outlining a detailed parenting time schedule inclusive of a schedule for when their son would begin school.   Three years after the divorce, their son began attending school and defendant sought to modify the schedule asserting that the son wished to spend more time with him.  The trial court denied the request and the defendant appealed.  The Appellate Division found that because the parties anticipated the eventuality of the child attending school and entered into a parenting time schedule defendant did not show changed circumstances to warrant a modification of the Order nor did he show that the provision was not in his son’s best interest.

I started this blog stating that I am an advocate of parties resolving their divorce and custody disputes.  However, I am wary about agreed upon provisions that pre-determine possible future disputes.  Life is full of uncertainty and changes.  Be cautious when agreeing to pre-determined resolutions for future events.


Apple Sulit-Peralejo is a partner of the firm and a resident attorney in the Atlantic City office.  She is an experienced matrimonial/family law attorney having negotiated Prenuptial Agreements, Custody Agreements and Divorce Agreements and having litigated unresolvable cases during the past eighteen years.  Apple may be reached at (609) 572-2230 or

It seems with greater frequency, a divorced parent will argue that he should not have to pay for a child’s college (a New Jersey requirement) because he has a poor relationship with the child and, relatedly, had no say in the education decision making process (i.e., what college, at what cost, etc.).  Since a parent’s relationship with a child is only one factor to be considered in determining that parent’s obligation to pay for a child’s post-secondary education, this argument is usually unsuccessful in isolation due to the importance of a child obtaining a post-secondary degree.

In an interesting approach to get around the limited success rate surrounding this argument, the dad in Radcliffe v. Radcliffe, Jr., a newly unpublished (not precedential) decision from the Appellate Division, argued primarily that the parties’ settlement agreement required the child’s emancipation, which would extinguish his obligation to support the child and pay for his share of college.  When reviewing the facts of the case as presented in the decision, the father’s approach seemed dubious, and, as a result, the Appellate Division not only took him to task in reversing the trial court – which actually largely relied on the parent-child relationship in rendering its decision – but also commended the daughter’s conduct.

As a refresher, a court will deem a child emancipated if, based on existing facts and circumstances, the child has moved “beyond the sphere of parental influence and responsibility exercised by a parent and obtains an independent status of his or her own.”  A court will look at, among other things, the child’s needs, interests, independent resources, the family’s reasonable expectations, and the parties’ financial ability.

In Radcliffe, the parties agreement, as often occurs, specifically defined emancipation as follows:

a. The completion of the child’s formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school. It is understood that as long as the child is diligently pursuing his or her formal education through a four year high school or a four year undergraduate college education, is obtaining passing grades, and is deemed by the college or school to be a full time student, the child shall not be considered emancipated.

b. Upon the completion of any of the prior segments of the child’s education and upon failure to commence the next segment of his or her education, or upon leaving school, the child shall be deemed emancipated. A child shall not be emancipated if one fails to continue his or her education because of some injury, illness or other cause beyond the child’s control.

c. The marriage of the child.

d. Entry into the military or armed forces of the child.

The parties also agreed to share the financial cost of college.

The facts here then take an interesting turn:

  • Daughter graduates from high school in June, 2012.
  • Prior to graduation, she was accepted at a private, out-of-state, 4-year college, which, after financial aid, would still cost $30,000 per year.
  • Recognizing her parents’ inability to afford this amount, daughter – one week after her high school graduation – enrolled in a 26 week “massage and bodywork program” at an accredited vocational institute.  With her massage therapist certification, daughter hoped to work during college and contribute to her education costs.  Tuition for the vocational program was $11,000.  Daughter took out a loan for $3,900 and asked her parents to fund the remaining portion.
  • After obtaining her massage therapist certification, daughter intended on enrolling at a county community college for the Spring 2013 semester.  She ultimately planned to attend community college for 2 years and then transfer to a New Jersey state, 4 year college or university so as to complete the last 2 years of her undergraduate education.  Community college cost $2,250 per semester, but, after the financial aid she received, would only cost $700 per semester.  While attending community college, daughter would continue to reside with mom and commute to school.
  • Daughter sent dad a copy of the tuition bill for the massage therapy program asking him to pay his portion.
  • Dad responded by filing a motion to emancipate his daughter, arguing that he had not had any contact with the daughter for the past 18 months, had not been consulted on her education plans, and, because daughter was not enrolled in a 4-year college, she should be deemed emancipated per the settlement agreement.
  • The trial court emancipated the daughter, thereby ending dad’s support and college obligation.  Mom appealed.

In reversing the trial court’s decision, the Appellate Division repeatedly commended the daughter for what it described as her “innovative” plan, where there was “absolutely no break in her quest for a college degree.”  Specifically, the Court concluded that the daughter had not moved beyond that “sphere of influence,” as she was still living with mom, was still financially dependent on her parents, had only missed one semester of college so as to pursue her “quest,” and was doing everything she could to obtain that undergraduate degree, including pursuing full-time educational pursuits.

As to its interpretation of the contractual language in the parties’ settlement agreement, the Appellate Division concluded that the parties’ intended for the daughter to go to college, and even agreed to jointly fund the entire net cost of college expenses.  Lauding the daughter for her in-state college plan, rather than compelling her parents to fund an out-of-state private school education, the Court concluded that she would obtain that 4-year degree so long as everything went as planned.

The Court then moved onto the trial court’s decision, which relied primarily on dad’s argument that he should not have to pay due to the poor relationship he had with the daughter.  Ultimately, the Appellate Division found that the trial court’s reliance on this one single factor of the analysis I describe above was improper:

The child has a commitment to her education, a commitment to working during college to help pay her way, and a commitment to earning as much financial aid as possible to reduce her parents’ burden.  After considering all of these factors, we conclude they weigh substantially in favor of requiring defendant to pay his share of the daughter’s vocational school and college expenses.

Based on the specific facts at issue, the Appellate Division’s decision seems appropriate in rightfully rejecting dad’s efforts to avoid payment for the college expenses that he is obligated to pay in the State of New Jersey, and agreed to pay in the parties’ settlement agreement.


Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or