Newburgh v. Arrigo

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  That is what happened in the unreported (non-precedential) case of Fletcher v. Euston decided on June 11, 2013.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

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?

As many parents get ready to send their children off to college, those who are collecting child support from a non custodial parent wonder how their child support may be affected. The New Jersey Child Support Guidelines are applicable when computing child support for children who are less than 18 or more than 18 and attending high school and living at home. What, then, happens to child support when a child leaves for college? The guidelines specifically state that they should not be used to determine parental contributions for college or other post secondary education. As an exception, they may be applied when a child is living at home and commuting to college. Over the years, courts have taken an inconsistent view as to how child support should be calculated for children living away at school. In the recent, published ( precedential) case of Jacoby v. Jacoby, the NJ Appellate Division addressed this issue.

In the Jacoby case, the parties who were divorced had two children. When the oldest matriculated at college, the non-custodial father moved to reduce his child support obligation to Ms. Jacoby since the child no longer resided in his mother’s house. The trial judge granted his application, and reduced the child support by employing a formula in which the judge calculated child support for two children, and then one child. The judge then took the difference of these two sums and determined 38% of the difference and 25% of the calculated remainder   These two sums were then added and set as support.   Essentially, what the trial court did was to recognize that child support is comprised of three broad categories: fixed costs – those costs that are incurred even when child is not residing at home. An example is housing related expenses; variable costs – those costs which are incurred only when the child is with the parent ( food is an example); and controlled Costs – costs which are incurred by the primary caretaker of the child, such as clothing and entertainment. The court then presumed there was a lower amount of variable and controlled costs when the child was away at college and reduced support accordingly. 

 

When the second child matriculated, Mr. Jacoby again sought a reduction. A different judge heard the application and denied Mr. Jacoby’s request. He then appealed. Continue Reading A New case on Child Support for a College Student

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

Post-judgment motions are common in family law, especially when it comes to paying for college tuition for the children of the divorced parties. Often times, older Property Settlement Agreements (“PSA”) are ambiguous when it comes to which parent will pay a child’s college tuition. As was the situation in the recent unpublished decision in Orero v. Orero, App. Div., docket no. A-2230-08T3, decided on February 19, 2010.

The Orero’s were married in 1987 and divorced in 1996. In 1996, the parties entered into a PSA where they agreed that if the children were to attend college each party shall contribute “to the best of their ability.” Well fast forward 13 years and their oldest daughter is about to begin college in Colorado. Now, Mrs. Orero seeks Mr. Orero to contribute half of the daughter’s college expenses. Mr. Orero alleges that he was (1) not consulted regarding the daughter’s choice of schools, (2) doesn’t have the ability to pay because he has children from another marriage, and (3) if he must pay, than he is entitled to a plenary hearing (similar to a trial) to determine the relevant facts. As a result, Mrs. Orero files a motion with the court seeking to enforce the PSA. Notwithstanding Mr. Orero’s arguments, the trial judge ordered Mr. Orero to pay half the college expenses. Mr. Orero filed a motion for reconsideration, which is denied. So Mr. Orero appeals.Continue Reading College Tuition – Who Pays?

What happens if a parent throws a teenage child out of the home and continues to collect child support? In short – sanctions. Those were the facts in a recent unpublished New Jersey Appellate Division decision, Lidon v. Lidon, Appellate Division, docket no. A-3355-08T3, decided December 28, 2009.

In Lidon, James and Jean Lidon were divorced in 1997.  Both parents were practicing attorneys. They had two children who resided with Jean. James paid $337 per week in child support to Jean.  The eldest child, a senior in high school, allegedly had a drug and alcohol problem. As a result, Jean threw their son out of her home in the summer of 2007.  This child subsequently lived with friends, in his car, and finally with Jean’s former boyfriend. He finished the school year and was accepted into Lehigh University.Continue Reading Child Support for a Child That Doesn’t Live with You?

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

New Jersey is one of the few states in the country that still requires divorced parents to pay for their children’s higher educations.  The term "divorced parents" is highlighted because married parents do not have the same obligation to pay for their children’s college education if they choose not to do so.  This distinction has lead some to argue that New Jersey’s laws are unconstitutional.  That is the topic for another day.

That said, the answer to the questions posed in the title of this post is maybe.  That is, parents of divorced children may not only have to contribute to their children’s college educations, but graduate school as well.

That was one of the topics of an unreported (non-precedential) case decided by the Appellate Division on December 10, 2009.  Specifically, in the case of Mulcahey v. Melici, the Appellate Division affirmed the trial court’s decision not to emancipate the parties’ child who had graduated from college, require the payment of child support to continue and requiring the payment of graduate school expenses.Continue Reading I DON'T HAVE TO PAY FOR MY KID'S GRADUATE SCHOOL, DO I?

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