“Caitlyn’s parents Maura and Michael were young loves. Their marriage only lasted two and a half years but the two say they amicably parented to give their daughter the best life they could.” ABC News Anchor, Wendy Saltzman, reported on last night’s news.

Caitlyn’s parents became estranged from their daughter when “Instead of following our rules, she decided she is going to leave her mother’s house where she was living and move in with her grandparents.”

When it came time for Caitlyn to apply to colleges, her parents made a joint decision they would not contribute to the cost of Caitlyn’s college education unless she attended a college in the State of New Jersey.

Despite not having meaningfully spoken with her parents in over two years, at age 21, Caitlyn approached her parents to contribute to the cost of Temple University, a Pennsylvania State School.

When her parents jointly refused, Caitlyn filed a Motion to intervene in her parents’ divorce action so that she could sue them for the cost of college.  The Court granted Caitlyn’s Motion and the lawsuit went forward with Caitlyn as an intervening party.

On October 31, 2014, a Camden County, New Jersey Court required Caitlyn’s parents to pay $16,000 toward her college tuition at Temple.  This Order was entered without any hearing.

Copyright: zimmytws / 123RF Stock Photo

From a legal perspective, this decision may problematic on several fronts.

We all know that divorced parents in New Jersey are required to pay for college on behalf of their children under the landmark 1982 case, Newburgh v. Arrigo.  The theory is that college is a necessity and divorced parents should pay as a facet of their obligation to provide support to their children.

Among Newburgh’s twelve enumerated factors that a court must consider prior to apportioning college contribution between parents are the following: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; and (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance.

As to the eleventh factor, we have seen New Jersey Courts previously deny college contributions on the basis of an estranged relationship between parent and child.

For example, in Gac v. Gac, the New Jersey Supreme Court held that in certain circumstances an estranged non-custodial parent should not be obligated to pay for college.  The Court must examine the following issues:

(a)        What caused the breakdown in the parent-child relationship;

(b)        Whether it is the child that has alienated the non-custodial parent; and

(c)        Whether the non-custodial parent was consulted on the child’s choice of college.

Similarly, in Dahms v. DeSanto, a 2007 Appellate Division Case, the Court reversed a trial court’s decision to compel an alienated non-custodial mother to contribute to the cost of her child’s college education.  On remand, the trial court was required to specifically consider:

(a)        The mother’s limited financial resources;

(b)        The impact of the estrangement and the decision to exclude the mother from the college selection process;

(c)        The root factors as to the breakdown; and

(d)       The lack of evidence of the parents’ agreement to pay for college.

Most recently, in the case of Black v. Black, which I blogged on several months ago, the Court held that while it would enforce an estranged father’s prior  obligation to contribute toward his son’s college costs, such obligation was expressly contingent upon the son’s reciprocal obligation to actively commence and attend joint counseling for the father.

Thus, while Caitlyn’s lawyer, Andrew Rochester, stated, “The law in New Jersey is so clear. It is cut and dry. The law says parents are supposed to contribute to their children’s post-secondary expenses,” an examination of the case law demonstrates this is not so.

The fact is that accordingly to precedent is that New Jersey Courts must carefully examine the issues surrounding the breakdown of the parent-child relationship prior to apportioning college costs.  Here, there was no hearing, no examination of who was at fault for the breakdown, evidence that the parents were not consulted and their opinions not respected.

Moreover, there was no indication that the Court made the parents’ payments conditional upon Caitlyn’s effort to repair the relationship, perhaps even as a condition of the contribution, as in Black.  Rather, all we have here are wildly differing versions of what happened.

However, what I find most striking is the Court did not extensively consider the first Newburgh factor: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education.

Oftentimes, an examination of this factor requires the Court to speculate as to what the parents would have done had they stayed together and made a joint parenting decision. A typical situation is that a custodial parent seeks contribution from the non-custodial parent because they are unable to come to an agreement and they invite the Court to resolve the dispute on their behalf.

But in this case it seems that the parents were on the same page; there was no need for the Court to speculate as to what their joint decision would have been.  It was the child, Caitlyn, who disagreed with her parents’ joint decision.  The parents were united.

From a Constitutional perspective, therefore, this situation hearkens back to 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 education?).

It seems that the simple act of the parents’ divorce exposed them to an obligation to contribute to their child’s college education even when they were in complete agreement no to contribute.

The parents have stated that they plan to appeal.  It will be interesting to see what the Appellate Division does with this case, particularly because the facts are so unique.

Meanwhile, Caitlyn’s parents were to pay the cost of her tuition yesterday but have stated they will not pay a dime until their daughter re-reestablishes a relationship with them.

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 etbaer@foxrothschild.com.

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 etbaer@foxrothschild.com.

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 freedigitalphotos.net

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 esolotoff@foxrothschild.com.

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.


Talk about sticker shock.  A New Jersey father was recently ordered to pay more than $112,000 for his daughter to attend Cornell Law School.


But is it really shocking?  The parties’ divorce agreement, entered into in 2009, did provide that the parents would split the cost of law school provided that she maintained over a ‘C’ average.  After all, isn’t that what agreements are for?  To be upheld and enforced?

There was a wrinkle, however.   At the time of the divorce, the daughter had already been emancipated.  In years that followed, father and daughter had a falling out. There was therefore no communication regarding the choice of law school or the daughter’s decision to attend Cornell.  Also, the daughter waited about three years from her college graduation date to enroll in law school in order to take time off and work.

While the parties’ attorneys attempted to settle the dispute, it was to no avail.  Apparently, the mother rebuffed the father’s offers to pay $7,500 per year toward Rutgers Law School, provided that the daughter lived at home with the mother and provided the father with weekly updates as to her progress.

Ultimately, he was ordered by the trial court to pay one-half of the daughter’s tuition at Cornell Law School.  The Appellate Division upheld that decision in light of his clear agreement at the time of the divorce to pay half of law school.

In that regard, the Appellate Division stated:

Where a settlement agreement is used to define the terms of a divorce, the agreement should be “‘entitled to considerable weight with respect to [its] validity and enforceability’ in equity, provided [it is] fair and just.” … We find nothing unfair or unjust in enforcement of paragraph 7 of the parties’ divorce settlement agreement as they executed it.

But is it fair and just?  The father, a Rutgers University professor, did offer to pay a portion of the cost of Rutgers University Law School, a state school, whose total cost is approximately $22,000 per year.

By contrast, Business Insider ranks Cornell – total tuition $76,680 – as #7 in their list of Top 10 Most Expensive Law Schools, broken down as follows:

Tuition:  $55,220

Living, Transportation & Personal Expenses: $16,250

Health Insurance:  $2,110

Books, Supplies & Computer:  $3,100

Blowing Your Life Savings On A Law Degree In One Of The Toughest Markets For Lawyers In History: Priceless?

While the total price of tuition may seem like a swift punch to the gut, it may sit even worse when you realize that chances are that the daughter, who was admitted into a prestigious Ivy League institution, would have received a scholarship at Rutgers.

In these tough economic times, especially when law degrees may not be as valuable as they were once thought to be, does it make sense for parents to be compelled to pay for pricey education, especially when he or she had no chance to put their foot down and say “no, it’s just too expensive”? Is an agreement to pay for half of law school and invitation for the child to attend any law school, without regard for the cost or the financial toll the decision will take on her parents?

Interstingly, this story has just gained national attention in the wake of on Tuesday mornings ruling by a Superior Court judge in Morris County refused to order a Lincoln Park couple to pay private school and college tuition for their 18-year-old daughter who moved out of their house and is suing for financial support.  See Robert Epstein’s recent post on the issue here.


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.

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.



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.


I have previously blogged about the permanent alimony , imputation and lifestyle aspects of the Gnall case decided by the Appellate Division last week.  The last interesting aspect of Gnall was the treatment of child support in an over guidelines case, specifically, college savings.

College Savings Stock Photo*Image courtesy of FreeDigitalPhotos.net

Remember from the prior posts that in this case, the husband was earning well over $1 million dollars and $65,000 was imputed to the wife, plus alimony. The trial court calculated a basic support award, using the Child Support Guidelines of $997 per week. The judge further ordered a supplemental award of $19,200 per child per year, from which the maximum allowable federal gift tax exclusion was to be deposited into each of the children’s existing UGMA for higher education, and the balance remitted to the wife in equal monthly installments.  Both parties appealled with the wife arguing that it was too low and the husband arguing that it was too high.  The Appellate Division remanded because it found the fact finding to be lacking.

Of note, the wife objected to the portion of the support that was supposed to go toward college savings, instead arguing that she should have and control all of the money.  In response to that argument, the Appellate Division held:

Even though a supplemental support amount in addition to the guideline’s base amount is authorized because of the parties’ high level of income, the judge must identify the nature of the children’s supplemental needs to be satisfied by the supplemental support awarded. See Caplan, supra, 182 N.J. at 272 (noting that the trial court may take any reasonable approach in arriving at an appropriate award); Strahan, supra, 402 N.J. Super. at 309-10 (same). We reject claims that the judge improperly considered the parties’ past practice of funding the children’s anticipated higher education costs through annual deposits into the UGMA accounts. See Strahan, supra, 402 N.J. Super. at 311 (criticizing an above-guidelines child support award absent evidence of some “marital standard” regarding “the way the parties treated the children”). We merely require the court to express those needs, in addition to the annual past practice of saving for the children’s education, to be satisfied by the supplemental support award. (Emphasis added).

While court’s are vested with the authority to set up trusts for children’s future needs in the rare case, given the income and assets, it is curious that it was done here.  It is also curious that an UGMA account would be used, since at 18, arguably the money is the children’s and it cannot be compelled to be used for college (though people use UGMA and UTMA accounts for this all of the time).  It also ignore the perhaps more beneficial college savings vehicle that is a 529 account. Moreover, depending on the perspective, it is potentially requiring the children to pay for their own college when there is no apparent need for that given the parents’ incomes and assets; is requiring the wife to pay for college out of her child support and/or in lieu of receiving child support; or is requiring the husband to prematurely fund the college obligation before the issue of college is ripe.  If his circumstances later substantially change for the worse, he has perhaps funded more than his proportionate share.

On the other hand, it appears that the court was met with the dilemna of knowing that it had to supplement the basic child support award and wanting to do so because of the husband’s seven figure income, but being unable to justify a greater award because the wife (or her lifestyle expert) did not show enough additional “need” for the support over the guidelines.  Is the issue what the lifestyle was, or what the wife would do with the extra money if she had it (and remeber, the income went up substantially, both during the last few years of the marriage and again post-complaint)?  If the law says that the children are entitled to share in the increased good fortune of their parents, how was that considered in this case, especially if the analysis was of marital lifestyle.

All in all, Gnall provided a lot of interesting points for lawyers and litigants to chew on, both in terms of how issues were decided and possible contradictions with other cases.  It will be interesting to see whether this goes up to the Supreme Court, or provides fodder for alimony reform.


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 esolotoff@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.


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