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  That is what happened in the unreported (non-precedential) case of Fletcher v. Euston decided on June 11, 2013.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

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

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

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

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

What payment obligation, if any, do divorced parents have towards their child’s post-high school education?  The New Jersey Supreme Court concluded more than 25 years ago that a child’s right to support includes a "necessary education" after high school, whether it be a vocational school or college.  However, a parent’s obligation to pay for such schooling depends generally on the expectations and abilities of the parties involved to pay, as set forth in 12 different factors including:

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.

 

Continue Reading A PARENT'S OBLIGATION TO PAY FOR POST-HIGH SCHOOL EDUCATION

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

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

 

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

 

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

 

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

Despite what people often think are iron-clad agreements, foolproof from any misinterpretation, despite best efforts, that may not always be the case.  One area that has been given significant recognition for interpretation by our courts is the area of what constitutes emancipation of a child.

This issue was recently addressed in the unpublished Appellate Court opinion, Zingone v. Zingone, decided June 1, 2009, A-0078-08T1.   Generally, a parent has no obligation to support an emancipated child.  So what constitutes emancipation?

The Supreme Court of New Jersey has held that emancipation can be found when a child marries, joins the military, reaching of an appropriate age, and when a court orders him/her so based upon the child’s best interests.  Just because a child turns 18 years old only establishes prima facie, not conclusive proof.  Whether a child is emancipated at 18 years old depends on the facts of the case.

So what does the court look at? The most important inquiry is whether the child has moved beyond his or her parents’ sphere of influence and responsibility and has obtained independent status.  To make this determination, one must look at the child’s needs, interests and independent resources as well as the family’s expectations and the parents’ financial ability.

However, if an agreement remains vague as to a triggering emancipation event, as the plaintiff argued in Zingone above, courts will often refer to public policy, which in modern times, encourages a college education, especially where a child shows scholastic aptitude and the parents are able to afford it.

In New Jersey, our highest Court has recognized that generally, financially capable parents should contribute to the higher education of children who are qualified.  Even in cases where a child may take a brief break from college, during which time he or she is working full-time, our courts have held that that child is not emancipated because he or she has not yet moved beyond their parents’ sphere of influence.

These cases are often extremely fact specific and require examination of several factors before an individual can determine whether or not their child may be emancipated under the laws of this state such that relief from financial obligations would be successful.

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

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

1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education.

2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education.

3. The amount of the contribution sought by the child for the cost of higher education.

4. The ability of the parent to pay that cost.

5. The relationship of the requested contribution to the kind of school or course of study sought by the child.

6. The financial resources of both parties.

7. The commitment to and aptitude of the child for the requested education.

8. The financial resources of the child, including assets owned individually or held in custodianship or trust.

9. The ability of the child to earn income during the school year or vacation.

10. The availability of financial aid in the form of college grants and loans.

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

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

Continue Reading FROM EMANCIPATION TO COLLEGE EXPENSES – WHAT IS A PARENT'S FINANCIAL OBLIGATION?

The issue of relationships between parents and children when determining allocation of college expenses is often a complicated one. I have had many post divorce clients, usually non-custodial clients, discuss their frustration with the lack of involvement that they have had in the selection of college for their sons or daughters but are expected to pay a significant portion thereof. They feel as if the are simply “a wallet.” The recent unreported Appellate Division decision of Miller v. Tafaro brought this to mind.

In Miller, the father had been estranged from his children for many years following the parties’ divorce. When the mother asked the court to enforce the Property Settlement Agreement as to the payment of college expenses, the father said that he should not have an obligation to pay as he did not have a relationship with the children. The Court noted that as this was but one factor for consideration by the court, and, given that the lack of relationship over the years with the children was a result of the father’s actions, the trial court’s decision that the father was obligated to pay a portion of college expenses was affirmed.

Continue Reading Poor Relationship with Parent not enough to Deny College obligation