It is not unusual for parties to address their children’s college education in their Marital Settlement Agreements.  If children are college age or close, parties may actually specifically determine the percentages that they will pay for college costs (including pre-college costs such as SAT/ACT preparation, application fees, etc.)  If the children are younger, parties often acknowledge their responsibilities and define the types of things will be covered, but defer the determination of their actual percentage shares until the children are in their senior year of high school.  Very often, the agreement will provide that the children are required to apply for all available financial aid, grants and loans.  Since student loans may be easy to obtain to fund the vast majority of college, at times, parties may limit the loans that they are going to force their children to take to subsidized student loans (e.g. Stafford, Perkins) which are limited vs. private loans where they could borrow vast sums.  But if college is a part of support of children in New Jersey, at least children of divorced parents or never married parents (vs. children of intact families that don’t seem to have the same rights), can they be forced to take loans to pay for an obligation that is supposed to be their parents’ obligation?

The issue of student loans was one of the issues addressed in the unreported (non-precedential) Appellate Division opinion in the case of M.F.W. v. G.O. decided today.  In this case, the parties divorced in 2003 when their daughter was 5 years old.  Their settlement included an agreement to pay for college and also had the typical language requiring that the child, “… “shall apply for all loans, grants, aid and scholarships available to her, the proceeds of which shall be first applied to college costs.”  When it became time for the child to go to college, in this case Georgetown, at a cost of more than $66,000 per year, the mother sought the father’s contribution for both college and pre-college costs.  When the issue wasn’t resolved, an enforcement motion was filed.  One of the father’s defenses was that the daughter should have been required to obtain loans.  It should be noted that the father’s net yearly income increased from approximately $80,000 per year at the time of the divorce to approximately $217,000 at the time of the motion.

The trial judge rejected the father’s request to enforce the agreement and require the daughter to seek student loans, finding it to be “repugnant.”  As noted by the Appellate Division:

The court found it was “unfair and unjust” to require Jane to apply for “all loans, grants, aid and scholarships available to her” and to apply them first to the college costs because Jane “should not be bound to a contract which she is not a party to” and because the parents “have a legal obligation to support” her “and cannot compromise that obligation even if they both agree.” The court found this provision of the PSA is “repugnant and will not be enforced.”

That is an interesting holding because I have seen these clauses enforced all of the time.  Seemingly, this is because the court found that “the parties have the financial wherewithal to meet all of their daughter’s financial needs for college.”  But many times I have seen this provision in agreements where the parties seemingly have the financial wherewithal though sometimes I shake my head because unless parties have saved substantially for college, most people can’t afford to pay for college out of income, even at the income levels in this case.  Moreover, some people of means include these clauses because one or both believes that the children need to have “skin in the game”, or because their parents didn’t pay for their education, or for any other reason.  As noted above, if parents of means in an intact family make their child take out loans for college, that is their prerogative and the children probably have no recourse.

Back to M.F.W., the father appealed arguing, among other things not germane to this post, that the trial court should have enforced the parties’ agreement regarding loans and the Appellate Division affirmed the decision.  With regard to the student loan issue, the Appellate Division noted that agreements are usually enforced and should not be disturbed, unless there is a change of circumstances.  You get the sense that the court was inferring that this is what the trial judge meant in his decision, assuming it was not specifically stated as such.  The change of circumstances was the parties increased income.  Accordingly, they held that

The court found “unfair and unjust” the provision that required Jane to apply for loans and financial aid because it was the parents’ obligation to pay for college and they had the ability to do so. Defendant acknowledged that “[t]he parties both have significant financial resources and can afford to send their daughter to Georgetown University.”  The court did not err by not enforcing this provision.

We cannot say, given the parties’ incomes, that the court erred by not requiring Jane to obtain loans or other financial aid where she would be financially obligated to repay the funds in the future. Her parents had agreed to pay for her college expenses under the PSA. This would include any loans to pay those expenses.

There appears to be a contradiction here.  Was the loan requirement eviscerated because of the parties’ increased income or because the parties agreed to pay for college and that this would include loans?  The latter suggests that it was intended that the agreement to pay for college included the agreement to pay for the loans that the child was going to be required to pay.  That certainly is not the standard practice.  Moreover, if the court is interpreting the agreement in that way, then there would not be a change of circumstances because they are interpreting the agreement to pay for college to also be an agreement to pay loans too.

Left unsettled by this case is (1) whether you can make your kids take out loans and if so (2) whether that agreement means that you have to pay for the loans your children take out if you agree to pay for college.   If nothing else, though not precedential, this case provides ammunition to parents seeking to compel the other parent to pay for college, whether or not their Agreement requires that the children take out loans.

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Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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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:

  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 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 responsiveness to parental advice and guidance; and
  12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

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.


headshot_diamond_jessicaJessica 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 jdiamond@foxrothschild.com.

We know that children are dependent on their parents for longer than ever before – sometimes well into their twenties. As I stated in an earlier blog post on this issue, which can be found here, currently, over 45% of 26-year-olds live at home with their parents. Many of these young adults have graduated from college and experience difficulty establishing careers during the recession. Historically, Courts have decided that if the child is no longer a college student, he or she should be emancipated. But what about when a child enters college and just never graduates? Does he or she receive child support indefinitely? Enter the “perpetual college student” (those who saw National Lampoon’s Van Wilder may better understand the reference…).

This exact situation was confronted in the unpublished (non-precedential) decision of Wesley v. Noor. In that case, the child entered Cumberland County College to obtain his associate’s degree in the Fall of 2008. In March 2011, the non-custodial father filed a motion for emancipation and termination of child support based on his belief that the child had not been enrolled as a full-time student since December of 2010. In response, the Plaintiff asserted that the child was making shaky, yet steady profess toward graduating in the Spring of 2012 – 4 years after he entered his 2 year college program. The trial court terminated child support, stating:

the [c]ourt is not going to make the Dad continue to pay child support for a child who is, on the [c]ourt’s perception, not making process at an appropriate rate of speed to justify me requiring Dad to continue to pay child support as though the child were still in high school…

I recognize that I [emancipated the child] under the circumstances as they exist, but if the child makes reasonable progress in school that does not mean that another application cannot be made…

 

In his written order, the judge stated:

Here, with all due respect, this child’s progress in school is not at what might be called a “normal course.” I[f] he is attending Cumberland County College in the Fall of 2011 – it is his fourth Fall Semester in a normally two-year school. He has taken at least one semester (Spring of 2010) off. The court cannot in good conscience require DAD to keep paying support for going on four additional years while the child takes twice as long to complete a program than normal.

 

The custodial mother appealed. The Appellate Division affirmed the decision of the trial court for “substantially [sic] the reasons stated by the trial judge…” and found no abuse of discretion in the trial court’s ruling.

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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 etbaer@foxrothschild.com.

 

So you are divorced and your child is going off to college.  What is the best way to get the other parent to contribute, whether there is an agreement that says he should or the agreement says that the issue shall abide the event.  Should you A) consult prior to college and keep the other parent in the loop and then make a motion if you cannot agree before the child goes off ot college; B)  make a unilateral decision then file your motion; or C) wait until the child graduates and when the other parent makes a motion for emancipation, hit him with a cross motion asking him to pay his share of a six figure college bill?  Obviously, A is the preferred method, B is a worse method and C is a method that may risk you not getting re-paid.

As we learned from the Supreme Court a few years ago in Gac v. Gac, a former husband was not required to contribute toward his child’s college education expenses, because neither his ex- wife nor his child requested financial assistance from him until after he sought to terminate child support and the child had graduated from college.  The Coourt found that their failure to make such request at time that would have enabled the father to participate in child’s educational decision as well as to plan for his own financial future weighed heavily against ordering him to contribute to the child’s educational expenses after her education was completed.

As the philosopher George Satayana said, those who cannot learn from history are doomed to repeat it.  That is what happened in the unreported (non-precedential) case of Fletcher v. Euston decided on June 11, 2013.  The facts of this case are similar to Gac and the worst case noted above.  However, the parties’ divorce agreement did provide that the parties would share the cost of college based upon their financial ability at the time.  In response to the Husband’s motion for emancipation, the ctrial court ordered him to reimburse the former wife over $111,000.  The Husband appealed. Continue Reading If You Want the Other Parent to Pay for College, Don't Wait Until Graduation to Seek Contribution

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.”

 

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.

Continue Reading College Financial Support When the Child Won't Speak to the Parent

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.  

Continue Reading Another college case: What's the actual ability to pay?

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).

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.

Continue Reading Graduate School – Who Pays?

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.

Continue Reading A Decision To Not Require Child Support Is Not Binding on Future Court To Hear Matter – Child Support Cannot Be Waived