Mediation is all of the rage in family court these days. However, in my professional opinion mediation is very over rated. There are basically several types of mediation. If you are getting divorced, and if you get to settle your case at the ESP, then the parties must engage in non-binding mediation. The court has a list of approved mediators. The lawyers have to pick a mediator. The mediator must provide the first two hours of time for free. Thereafter, the mediator charges an hourly rate that ranges from $175 to $450 per hour.

The second type of mediation generally involves divorcing spouses engaging a mediator to try to reach a mediation agreement before the complaint for divorce is ever filed. Thereafter, once a mediation agreement is reached, then one spouse must hire a lawyer and then file for divorce. The mediation agreement is then converted into a PSA, and the parties can put the case through as an uncontested divorce. It is important to emphasize that even if you obtain a mediation agreement, you will still have to hire a lawyer to file for divorce, and to have the mediation agreement ratified by the court.

Mediation is not as great as it sounds. Most mediators charge about $300 per hour or more. Moreover, once you obtain a mediation agreement, you will still have to hire a lawyer to file for divorce. Moreover, in my professional opinion many mediators insert page and page of filler boiler-plate verbiage into the mediation agreement. I had one case wherein the divorcing couple paid approximately $4,000 for the services of a mediator. The mediator prepared a 60 page mediation agreement that was essentially all boiler plate nonsense. The parties had very little assets and a 10 to 15 page mediation agreement would have been just fine. The mediator must have charged the clients by the pound.

The bottom line is that mediation is not the “end all be all.” Moreover, keep in mind that cases get dragged out in the mediation process. Mediators like to get paid. Most mediators slow down or stop working on a case if their bills don’t get paid. Moreover, mediators don’t have the power of a judge. In my experience, many divorcing spouses play all sorts of games in the mediation process. A mediator simply does not instill the same sense of fear into a divorcing spouse as a judge does. My major gripe with the mediation process is that it often gets dragged out. If the parties stop paying the mediator’s bills then the case grinds to a half. Thereafter, once the parties scrape up some money to pay up the mediator’s bill, then the legal issues may have changed, and the richer spouse has had more time to hide or dissipate the marital assets.

2. I am now getting divorced from my wife. We are now in the mediation process. If we reach an oral mediation agreement is it legally enforceable?

Courts love it when the parties reach settlements. The family court system is designed to put through divorce settlements. Only about 2% of the filed divorce cases go to trial. The New Jersey court system is not adequately funded. There should be at least three times the amount of judges that are currently on the bench. Mediation basically was created to reduce the backlog of pending divorce case. The State of New Jersey simply refuses to hire more judges to keep up with the increased divorce case load. In 1969, only 3% of married couples got divorced. Today, the divorce rate is easily more than 50%. To cope with the explosion of divorces, the court system created mediation and arbitration to keep up with the ever expanding amount of cases. The case load will only increase more now that gay marriage will be a reality very soon. Basically, the mediator and the arbitrator take the place of the judge. However, the mediators and the arbitrators get paid from $200 to $450 an hour. You don’t have to pay the judge.

It is very common for the parties to reach an oral or an informal mediation agreement during the process. There is a big push in the mediation process to always reach a settlement. Therefore, at many mediation sessions the divorcing spouses reach an informal/ oral mediation settlement. Sometimes these informal settlement agreements are reduced to writing. Thereafter, the lawyers will more formally memorialize the agreement.

Once the parties reach an oral mediation agreement, it is not uncommon that one spouse will change his/her mind, and cancel the agreement. The crucial legal issue then ensues as to whether the oral mediation agreement is enforceable. In the majority of cases an oral mediation agreement is enforceable unless it is manifestly oppressive and unjust.

A very illustrative case N.H. v. H.H., 418 N.J. Super. 262 (App. Div. 2011). Here, the court held that it not an error for the court to enforce a mediated PSA without a hearing where plaintiff claimed: (a) there was inadequate disclosure, (b) she did not understand the impact of waiving pretrial discovery; (c) that the PSA wasn’t fair or reasonable and (d) that there was no formal valuation of the marital estate? The Appellate Division held that public policy favors enforcement of agreements. The court opined that you do not need full and broad discovery for an agreement to be fair. In this case, the wife voluntarily executed the agreement and agreed to limit the scope of discovery to a streamlined valuation which was allowable under Lerner v. Laufer, 359 N.J. Super. 201 (App. Div.), certif. denied, 177 N.J. 223 (2003).

In the N.H. case, the wife received 3.3 million in cash, $800,000 in clothing and jewelry, artwork, furniture and a substantial alimony award of alimony of $8,000 per month. Moreover, the wife also received a percentage of her husband’s bonus for 24 months, and thereafter $10,000 per month in alimony. The court held that this settlement was fair and equitable.

3. What are some other recent cases that favor enforcing a mediation agreement(s)?

Another important case is Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, LLC, 421 N.J. Super. 445 (App. Div. 2011). The major issue was whether the court will enforce an oral settlement reached during a Rule 1:40-4 mediation if the agreement was not reduced in writing for three days after the mediation session? The court held that although an agreement reached in mediation must be in writing to be enforceable pursuant to Rule 1:40-4(I), the terms may be prepared shortly thereafter. Thus, the court enforced the oral mediation agreement.

In summary, whether an agreement reached through mediation is enforceable is decided on a case by case basis. However, there is a strong push to enforce oral or informal mediation agreements. At the end of the mediation, the lawyers for the divorcing spouses or the mediator will prepare an agreement that documents all the main issues that have been agreed to. Eventually, both parties will sign this mediation agreement and the case should be over. After the mediation agreement has been prepared and signed, then in most cases this agreement is converted into a property settlement agreement (PSA) decided, the lawyers may draw up a more formal document that can be filed with a court in order to dismiss the case. Recently, many experienced lawyers have started to bring their lap top computers to the mediation so that they can prepare an agreement at the end of the mediation.

The answer to this question is a very “grey” maybe. Technically, a legal argument can be made after reviewing current case law that you can legally place a GPS on your spouse’s vehicle and spy on her. Nonetheless, please keep in mind that your ex-wife can always find the GPS device, and then file a harassment charge against you. Thereafter, she can also file for a restraining order, and base her DV case on the underlying harassment case.

A very insightful case is Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353 (App. Div. 2011). Here, the major issue was whether the placement of a global positioning system (“GPS”) device in a person’s vehicle without his or her knowledge constitutes the tort of invasion of privacy? Here, the Appellate Division held that putting a GPS device in a spouse’s car was not considered to be an invasion of privacy.

In the Villanova case, the wife, in the middle of a divorce case, hired a private investigator to follow her husband. She was trying to catch him cheating on her. The plaintiff-husband Villanova then filed a complaint for the intentional or negligent invasion of his right to privacy after his ex-wife (then current wife) installed a GPS device in the family car following the advice of her private investigator. Ms. Villanova retained the services of Innovative Investigations, Inc., a private investigation company, after she suspected her husband of cheating on her.

The plaintiff alleged that by placing a GPS tracking device in the vehicle that was shared by the couple violated his privacy rights. The trial court granted summary judgment in favor of defendants because the plaintiff/husband Villanova was unable to establish that he had any reasonable expectation of privacy in any of the information that allegedly obtained by the GPS device. It was undisputed that the vehicle in which the GPS was installed was jointly owned by the Villanova couple. The Appellate Court opined, that in order to substantiate a claim for the invasion of privacy, a plaintiff must be able to prove he/she has some privacy interest in the information at issue.

Ultimately, the wife used this GPS evidence that she obtained at the divorce trial. During the divorce case, the husband amended his divorce complaint, and he added a count for the invasion of privacy damages against the wife. The husband also added the personal investigator as an additional defendant to the divorce case. However, the court denied this request. The invasion of privacy claim that was filed against the private investigator was ultimately dismissed. The trial court held that the husband had no reasonable expectation of privacy while he was driving on public roads. Thereafter, the husband appealed.

The Appellate Division also held that Villanova had no reasonable expectation of privacy because the GPS tracked his movements on the public streets. The court provided in pertinent part:

As we have stated, there is no direct evidence in this record to establish that during the approximately forty days the GPS device was in the Denali glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to defendants. Plaintiff urges that we find, for summary judgment purposes, that an inference could reasonably be drawn from defendants’ report to establish such a fact through circumstantial evidence.

                                                      ………………………………………………………

Everything described in this report occurred on public roadways and in plain view of the public. There is nothing in this report that could support an inference that any surveillance of plaintiff extended into private or secluded locations that were out of public view and in which plaintiff had a legitimate expectation of privacy.

2. What are the main points of the Villanova v. Innovative Investigations, Inc. case?

The main point of the Villanova case is that the interplay between the law of invasion of privacy and family law is always in a constant state of flux. You can take the same set of facts as established in the Villanova case and litigate the same type of case in a few years before a new set of judges, and you could obtain an entirely new result. The key legal term of art in any case involving an invasion of privacy rights is; “What is considered to be a reasonable expectation of privacy?” In the world of family law the answer to this question is always in a constant state of flux.

A very prevalent legal issue in family court is what constitutes an invasion of privacy. I constantly hear of stories of spouses installing “gizmos” or tracking software on their husband or wife’s computer. I have also heard of many stories wherein a spouse will install cameras in the home to try to catch the other spouse cheating. Finally, I have heard of stories wherein spouses bug phone conversations in the home. In these type of scenarios, the key issue is whether the computer, the phone, or the house that was jointly owned or shared. If it was, then in the majority of the cases, most judges will not consider this type of conduct to be considered to be an invasion of privacy. However, if a person hacks into his wife’s work computer, or installs bug software on it, then this type of action certainly could be considered to be a marital tort of the invasion of privacy. If a husband bugs his wife’s cell phone, then this conduct also could be considered to be a marital tort, because the married couple did not share the phone. Finally, if a husband places a GPS device on a cheating spouse’s paramour vehicle then this conduct could also be considered an invasion of privacy.

In summary, the key issue is whether the married couple shared the house, the computer, or the vehicle. If the couple shared these assets, then a strong argument could be made that since the married couple shared these assets, then he or she could not have any reasonable expectation of privacy of the following:

a. That the phone conversations would not be recorded.

b. That the computer logs would not be recorded.

c. That the home would not be subject to surveillance.

However, please keep in mind that many judges could consider this type of behavior to constitute harassment. Thus, a conniving spouse could file a DV case against you for trying to catch her cheating. What a world we live in!

New Jersey divorced parents who help pay for their child’s college education are now legally entitled to review their child’s grades/transcript. In the recent New Jersey case of Van Brunt v. Van Brunt, (Superior Court of New Jersey, Ocean County, Chancery Division, Family Part, Docket No. FM-15-091-08N, 2011), the court held that a child must now provide his/her transcript to the payor parent. The court held that this legal requirement does not violate the Family Educational Rights and Privacy Act FERPA. As a result of this case, a child or a custodial parent can no longer hide behind any legal shield provided by FERPA. A child must now disclose his or her grades/transcript to any parent who is paying for college.

After a divorce, it is common knowledge that many ex-spouses remain at war with each other. Unfortunately, the kids get stuck in the middle. In many cases, the non-custodial parent is simply seen as a wallet, and he is not kept up to date on the child’s educational status. Many children and custodial parents have stubbornly refused to provide proof of the child’s academic status. They claim that this information is protected under the provisions FERPA. The non-custodial parent then remains in the dark, and he is forced to pay child support and college contribution for a child who may have dropped out of school.

In the Van Brunt case the Ocean County Superior Court held that a college student is legally required to provide proof of college attendance, course credits and grades as a condition of receiving ongoing child support and college contribution. The court further held that this legal obligation does not violate the student’s rights to privacy or the provisions of FERPA. The court also opined that the custodial parent has a responsibility and a legal obligation to make sure that the non-custodial parent is provided with ongoing proof of the student’s college enrollment, course credits and grades.

In summary, a college student has a legal right to privacy as it relates to his/her college records. There is federal law which provides that students over 18 are entitled to certain privacy rights. These privacy laws have not been overturned. It is important to emphasize that the provisions of FERPA have not been repealed or changed. It is black letter law that colleges can’t release student records to third persons without the student’s written authorization, or in certain other very limited circumstances. Nonetheless, a parent who is legally required to pay child support or for college, has a clear legal right to receive ongoing verification of proof of enrollment, and a copy of the child’s grades/transcript. The payor parent is legally entitled to receive this information so as to determine whether the child remains unemancipated.

1. How do the courts defense full-time college enrollment?

In the world of family court, a common issue is whether “sonny boy” or your daughter is a full time student. This question often becomes a game of “cat and mouse.” If your child is a full time student then you have to pay the “full boat” of support under New Jersey law. This type of support consists of child support and college contribution. Meanwhile, in some cases if a child is only attending college on a part-time basis, then some judges will emancipate a child. It is not uncommon for a child to attend a community college, trade school, technical school or a university for five to eight years, or even longer. In many scenarios, the child who is attending school also lives with the payee spouse. The child support payments help keep the bills paid for the payee spouse. Therefore, the child often feels no pressure or urgency to obtain his or her degree in a timely manner. In many cases, this type of scenario drives the payor spouse absolutely nuts. Nonetheless, this type of dynamic is very common in many split up families today.

The connection between emancipation and what constitutes full time college enrollment/attendance was recently explored in the unpublished Appellate Division case of Alexander v. Alexander, 2011 N.J. Super. Unpub. LEXIS 1562. This case raises an interesting question how many credits must a child take to still receive child support and/or college contribution. In many New Jersey families a major is issue is what constitutes full time college enrollment? The standard definition of full time enrollment is typically 12 credits. Almost every college or university in New Jersey defines full time enrollment as taking 12 credits.

The Alexander case addressed a post-judgment emancipation motion. Here, the plaintiff Everald Alexander successfully obtained an order that emancipated his twenty-two-year-old son, and his child support payments were terminated. When the defendant Sandra Alexander received a copy of the April 21, 2010 order, she then filed a motion for reconsideration. She asserted that the parties’ son was a full-time student who attended the Bergen Community College. The motion judge granted the defendant’s request for reconsideration, and she reinstated child support for the unemancipated full-time college student. Thereafter, the plaintiff then filed an appeal.

More specifically, the parties were divorced on in 2000. The defendant was designated as the residential custodian of the parties’ two children. In the fall of 2007, their son started attending the Bergen Community College.

The plaintiff filed a motion for emancipation in August 2009. This motion was denied. However, court ordered that the child would be deemed emancipated if he failed to resume full-time studies by January 2010. In March of 2010, the plaintiff filed his second motion to emancipate his son. The father maintained that the son had not earned sufficient credits to be considered a full-time student. This motion was unopposed and it was granted. Thereafter, the court terminated the plaintiff’s child support payments as of March 10, 2010.

Thereafter, the defendant then filed a motion for reconsideration. The father asserted that she did not receive the plaintiff’s motion papers because of a change of address. Moreover, the defendant also maintained that the parties’ son was attending college on a full-time basis. In her reply to plaintiff’s opposition, the defendant provided the child’s unofficial transcript that showed he had taken additional summer classes toward obtaining his degree and also successfully completed fifteen credits in the fall 2009 semester and thirteen credits in spring 2010 semester. The defendant also supplied the child’s registration for 2010 summer classes and an application to enroll in a four-year degree program at William Paterson University.

The motion judge granted the defendant’s motion for reconsideration. The motion judge-determined that the defendant did not receive or respond to the plaintiff’s motion for emancipation because he mailed the motion papers to defendant’s former address. Furthermore, the motion judge examined the child’s updated schedule of completed courses. The motion judge determined that on the date of the prior order, March 10, 2010, he was a full-time student “clearly making efforts to complete his degree” and that emancipation had been improvidently granted. Thereafter, the plaintiff father then appealed.

2. What is the major holding of the Alexander case?

The Alexander court held that proof of full-time student status requires registration for a full-time class load coupled with efforts designed to satisfy the degree or certification requirements of the educational institution. Implicit in this standard is that a child must act in good faith: the student must attend class and comply with other course requirements in an effort to satisfactorily pass. See, Filippone v. Filippone, 304 N.J. Super. 301 (App. Div. 1997), (holding a child pursuing post-secondary education may no longer be dependent when the “child is unable to perform adequately in his academic program”).

In summary, the connection between emancipation and the enrollment/attendance at college is decided on a case by case basis. You can file the same motion before ten different New Jersey family court judges, and you could receive ten different results. However, keep in mind that the payee spouse and the child are considered to be the equivalent of the “Yankees” or “Manchester United” in the family court. They usually win, and every benefit of the doubt usually goes to the payee spouse or to the child. Many judges are often quite sympathetic to a “slacker” child because lets face he or she is often caught up in the middle of the mishegas. I am not Jewish but I love this word. Therefore, many judges will refuse to emancipate a child if he or she is slacking off and not taking a full course load of 12 credits. Many judges will deny a motion to emancipate based on the legal grounds that the child is not taking the full 12 credits. However, many judges will add provisos in the order that compels the slacker child to step it up, and to increase the amount of credits.

Every ex-husband hates to pay alimony, especially in these hard economic times. Most people in New Jersey can’t even go on a decent vacation because they are swamped with outrageous property taxes. To many divorced men the word alimony is more foul and vulgar than using the “F” word! If you are now receiving alimony then rest assured that sooner or later you will eventually receive a motion from your ex-husband to try to reduce/eliminate your alimony payments. The strongest grounds to reduce alimony is if the payor spouse should become sick or if he has a medical condition. Another strong legal ground is when the payor’s business collapses or if he files for bankruptcy. The legal grounds to reduce alimony based on the dependent spouse’s improved economic fortunes are not as strong as the other major Lepis grounds. Moreover, it is important to emphasize that each case is decided on its own individual merits.

A frequently cited “change of circumstances” is when a former wife “makes a comeback” and she is now earning an income that is comparable to her ex-husband. The payor spouse can now argue to the court that since the income between the parties is now similar, there is no longer any economic need for any alimony. These types of Lepis cases are often very contentious, and they are also very difficult for a judge to decide. However, in my experience the key issue is who is the judge handling the motion. The current status of New Jersey case law indicates that every Lepis motion based on a change of economic circumstances is decided on a case by case basis. You could file the same alimony reduction motion before ten different judges, and you could receive ten different results. The main point is that almost every individual judge interprets New Jersey alimony law differently.

By far, the most important case to cite when defending an alimony reduction motion based on the improved economic condition of the dependent spouse is Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004). Here, the plaintiff Keith Glass, argued that there were changed circumstances, and he filed a motion to terminate his alimony. The changed circumstances did not constitute an inability to pay the alimony. Instead, the ex-husband maintained that the defendant’s income was now sufficient for her to maintain her own marital standard of living. After a lengthy and expensive plenary hearing, the motion court concluded that the defendant could maintain a reasonable marital standard of living on her current income. Thus, the wife’s alimony was terminated. The motion court further held that it found that “no equities” that weighed in defendant’s favor. On appeal the case was ultimately reversed.

The main point of the Glass case was that even if the payor spouse can prove that the dependent spouse can maintain the established marital standard of living on her own income, this factor alone does not automatically require that alimony must be terminated. Instead, it is only a significant factor that must be considered with other relevant factors to make any Lepis rulings. Here, on appeal the court noted that there were several equities that weighed in defendant-wife’s favor. The property settlement agreement anticipated that the defendant wife would get a job in the future. Moreover, the defendant-wife had a reasonable expectation that she would receive permanent alimony when she planned her financial future. Finally, the defendant also maintained a frugal lifestyle. The court noted that she should not be punished merely because she has lived a conservative life.

In summary, the Appellate Division held that the “change of circumstances” asserted by plaintiff was actually no change at all. The court also opined that the wife’s current income earned at AT and T simply reflects the reasonable expectation of the parties in the performance of the property settlement agreement. Thus, the Appellate Division concluded that the wife’s alimony should not have been terminated.

2. What were the facts of the seminal Glass v. Glass case?

Here, the plaintiff and defendant were married in 1974. In that year, the parties moved from North Carolina, to Colorado, then finally to California, where the plaintiff had been accepted into law school. The parties resided in California from 1975 to 1983. Initially, the couple had limited financial means. The plaintiff had a start-up law practice, and he worked as an assistant basketball coach at UCLA, he worked at summer camps, and he started a basketball school. As their finances were limited, the parties never had any domestic help, yard help, a cook, or a baby nurse for either child. They infrequently went out, and seldom went to restaurants. Their vacations were limited to visiting his family in New York and her parents in Atlanta. The only other vacation taken was a trip to Tokyo for which UCLA paid. They maintained two cars, neither new, and then only one car after defendant was involved in an accident.

In June of 1983, the parties moved to Middletown, New Jersey. Here, they bought their first house for $110,000. The home was  financed by two mortgages to make the purchase. The plaintiff and the defendant ultimately separated in November 1985. On June 1, 1986, the parties entered into a property settlement agreement. The plaintiff was required to pay both child support and alimony.

When the plaintiff moved to New Jersey, he stopped practicing law, because the law school he attended was not accredited. Instead, the plaintiff worked as a sports agent for basketball players. The plaintiff also coached high school basketball. In 1986, according to the plaintiff’s income tax return, plaintiff’s gross receipts from his sports agency business amounted to $36,600, and his adjusted gross income was $25,220. Notwithstanding this reported income, from January 1986 to May 1986, the plaintiff paid defendant $2,850 per month in alimony and child support.

During the course of the marriage and until 1988, the defendant was unemployed. However, only a few years after the divorce, the defendant started working at AT and T.

On September 29, 1999, the plaintiff filed a notice of motion to terminate both his alimony and child support. The motion court granted the plaintiff’s motion to terminate alimony. The court noted that the “defendant has not demonstrated that she continues to need support to maintain the standard of living during the marriage.”

Thereafter, the defendant filed an appeal. On appeal the case was reversed, and the case was remanded back to the motion court for a plenary hearing. A plenary hearing was held. In 2000, the defendant’s W-2 wages were $54,390 and subtracting her retirement contribution in the amount of $3,256.98, her taxable wages were $51,133.99 while her total income was $58,802. In 2001, the defendant’s reported wages were $60,494, and subtracting her retirement contribution in the amount of $3,628 for that year, defendant’s 2001 taxable wages were $56,865.19. Once again the motion court granted the plaintiff’s motion to terminate his alimony.

On appeal, the defendant claimed that the motion court committed a reversible error because; a) The motion court erroneously concluded that plaintiff met its burden of establishing changed circumstances; 2) The motion court failed to properly assess the intention of the parties at the time of execution of the PSA;  3) The motion court failed to properly consider equities in the defendant’s favor; and 4) The motion court committed a reversible error in determining the defendant’s standard of living. In response, the plaintiff asserts that the motion court correctly concluded that defendant’s income exceeds her expenses, she continued to live in the same lifestyle as at the time of the marriage, and the judge did not commit any error in terminating alimony.

3. How did the Appellate Division ultimately decide the Glass appeal?

The Glass court ultimately held that the payor spouse could not terminate his alimony. The court noted that at the time plaintiff and defendant entered into the PSA, there were no findings were made as to the adequacy or sufficiency of the agreement. What was known was that defendant was not employed, was caring for two children, was maintaining a household and clearly could not exist on the limited support provided by the PSA. The court held that the parties fully contemplated and understood that she would be employed in the future and be receiving income.

The Glass court further analyzed that the PSA was an integrated agreement. The PSA not only resolved issues of custody and visitation but financial matters including equitable distribution and spousal and child support. No one element stands alone and can be read without reference or consideration of the others. The parties entered into a voluntary agreement contemplating that defendant would be employed in the future with income to supplement her support.

4. What are the key points of the Glass case?

The key point in the Glass case is that a motion to modify a PSA agreement is an exception and it is not the rule. Judges and litigants alike contemplate that agreements entered into in good faith containing provisions such as permanent alimony shall be performed in accordance with their terms. The exception is that circumstances will arise that will make the enforcement of the agreement to be inequitable. These circumstances do not include a supported spouse earning a modest sum of money that will allow her to save for her future. Capodanno v. Capodanno, 58 N.J. 113, 120 (1971).

Here, in the Glass case the motion court failed to consider all of the relevant equities here and improperly terminated support. In summary, in any modification case, the burden of proof is on the party seeking change. Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004). Simply going into the family court with a certification stating that you have lost your job due to the recession, and therefore seeking modification, is not enough. A payor spouse’s effort to find another job must be both aggressive and active.

5. What are some other cases that I can use to defend against a motion to reduce my alimony?

A. Aronson v. Aronson, 245 Super 354 (App. Div. 1991) (Former husband’s reduction in income did not warrant reduction in alimony because he could be making more; court should have considered former wife’s inheritance in determining whether modification was warranted).

B. Avery v. Avery, 209 N.J. Super. 61-62 (App. Div. 1986) (finding that “plaintiff’s increased earnings in light of her needs do not represent changed circumstances permitting termination of alimony,” particularly as “the agreement obviously contemplated a significant increase in plaintiff’s earnings in order to maintain the former life style of the family unit”).

C. Dilger v. Dilger, 242 N.J. Super. 380, 385 (Ch. Div. 1990) (stating that to determine whether the defendant’s retirement is a changed circumstance warranting modification of alimony, the court must first “examine the intention of the parties as expressed in the agreement itself”).

D. Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006) (Modification denied on application made only 20 months after divorce, suggesting change in circumstances was only temporary; holding that neither compulsory discovery nor a plenary hearing was required until the movant provides sufficient evidence of a material changes circumstance).

E. Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998) (reversing the termination of alimony and finding that the judge erred when, among other things, “the judge did not factor in the principle that the amount of alimony here was set originally by the parties themselves,” as such agreements ordinarily include trade-offs between the parties).

F. Savarese v. Corcoran, 311 N.J. Super. 240 (Ch. Div. 1997) (finding the parties intended the PSA, which included an anti-Lepis clause, to be an integrated agreement, in light of what the parties “actually understood at the time and how they conducted themselves subsequently”), aff’d, 311 N.J. Super. 182 (App. Div. 1998).

G. Schwartzman v. Schwartzman, 248 N.J. Super. 73 (App. Div. 1991) (Husband’s failure to anticipate the close of his business was not exceptional circumstances justifying modification).

H. Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004) (Refusing to recognize husband’s reduced earnings based on career change where perceived advantages to husband were outweighed by disadvantages to his ex-wife).

1. Can I have my alimony reduced because I was declared disabled?

Yes you certainly have a reasonable chance to win your alimony reduction motion shot. A recent illustrative case is Widney v. Widney, DOCKET NO. A-0128-09T3. Here, the husband filed a motion to reduce his alimony because he claimed he was disabled. The trial court denied his motion. Therefore, he appealed. On appeal, the Appellate Division, remanded the case to the trial court to consider plaintiff’s medical evidence of his disability, and any other evidence pertinent to his capacity to earn income.  On appeal, the Appellate Division, remanded the case to the trial court to consider plaintiff’s medical evidence of his disability, and any other evidence pertinent to his capacity to earn income.

A background of the case is as follows. The parties were married in 1984 and divorced in 2004. Two sons were born of the marriage, and they were both emancipated. The parties also raised defendant’s daughter from a prior marriage. Throughout the marriage, the plaintiff operated a tree trimming business as a sole proprietor. His work included substantial physical exertion in climbing and cutting trees and other manual tasks of the job. The plaintiff suffered injuries to his back, and he was also was admitted to a psychiatric hospital near the end of the marriage.

At the time of their divorce in 2004, the parties negotiated a PSA. The plaintiff agreed to pay defendant a total of $4,000 per month in alimony and child support. This amount consisted of permanent alimony of $2,500 per month and child support of $1,500 per month. The support obligation was based on gross income of $110,000 per year attributed to plaintiff and $15,000 per year to defendant. More than half of plaintiff’s income at the time of the PSA consisted of disability benefits, that he was receiving in lieu of business income through insurance policies he had obtained on himself and his business.

Soon after the parties were divorced in 2004, the plaintiff filed a motion to reduce his alimony payments. The grounds of the Lepis motion was that on the ground that his business income was substantially less than the $110,000 per year when he was divorced. His first two alimony reduction motions were denied in 2005.

In 2009, the plaintiff filed another motion to terminate his alimony payments on the ground that he was permanently disabled, and that could no longer earn sufficient income to make these payments. In support of his motion, he submitted a report of Dr. Gordon Donald, an orthopedic spinal surgeon, stating:

patient has debilitating symptoms of lumbar spondylosis and discogenic disease that are managed with a light exercise program. He is medically incapable of performing the core physical duties of his tree service business and is permanently disabled from such due to his spinal pathology.

The plaintiff’s motion was denied without prejudice. The motion judge citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950), and Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992), and finding that plaintiff had only shown that his disability was temporary.

Thereafter, the plaintiff re-filed his motion to terminate or reduce alimony. In support of the motion, the plaintiff submitted a short letter dated April 20, 2009, from the State of New Jersey Department of Labor and Workforce Development, Division of Vocational Rehabilitation Services (DVRS). The letter stated that plaintiff had been found eligible for the services of the agency, meaning that he had a disability and was in need of rehabilitative services to return to work. On the morning of oral argument on his motion, plaintiff attempted to submit additional documents, but the motion judge declined to consider the late submissions.

The motion judge again denied without prejudice plaintiff’s motion on the ground that he had not shown changed circumstances warranting a modification of alimony. The order stated:

Plaintiff does not provide the Court with any new information other than he is eligible for the services of the Division of Vocational Rehabilitation Services which supports the Court’s finding that plaintiff’s disability, if any, is temporary. The Court notes plaintiff’s Vocational Rehabilitation Counselor has not determined plaintiff to be permanently disabled. Plaintiff has not established a prima facie case of changed circumstances based on a Social Security determination notwithstanding being advised by his State Vocational Rehabilitation Counselor to reapply. Golian v. Golian, 344 N.J. Super. 341 (App. Div. 2001).

Thereafter, the plaintiff promptly filed another motion for reconsideration. The plaintiff attached to the motion four new documents in response to the court’s prior rulings. He attached a letter and a certification from Cheryl Shankle, a manager at DVRS, explaining the agency’s rehabilitation program and stating that, based on the medical documentation provided by plaintiff. The motion for reconsideration was also denied. Thereafter, the defendant appealed.

In summary, the plaintiff’s motion was denied without prejudice. The motion court held that the plaintiff had only shown that his disability was temporary. Moreover, the motion judge again denied the motion on the ground that he had not shown changed circumstances warranting a modification of alimony.

On appeal, the Appellate Division held that the defendant had established a prima facie case, and that he was entitled to a plenary hearing. The court noted that the plaintiff submitted additional documentation that established a prima facie showing of a permanent disability. The court noted that the DVRS documentation, together with the certification and the report of Dr. Donald, established a prima facie showing of permanent disability that warranted a further hearing to determine the plaintiff’s ability to earn income.

Finally, it was ordered that at the plenary hearing, the trial court should consider all medical and related evidence of disability, including any contrary evidence presented by defendant. The court noted that the trial judge may require testimony by doctors or other qualified expert witnesses to establish the full nature and scope of the plaintiff’s disability. Additionally, the Appellate Division also held that the trial court should permit the parties to engage in full discovery.

2. What is the major point of the Widney case?

The major point is to never give up your up on your quest to reduce or even terminate alimony. It is important to emphasize that the family court judges usually change every two to three years. A new judge may take an entirely different view of your Lepis motion. If your motion is denied, then don’t just simply refile the same old motion. If you are truly sick or disabled, then you should supplement the motion with as much additional medication documentation as you can. The judges don’t want to just take your word for it that you are sick and disabled and that you can’t work. They want to see some hard core proof.

A very common scenario is when child starts bombing out of community college or a four-year college, and then noncustodial parents then wants to try to emancipate the child. Thus, the vexing issue is whether a noncustodial parent can emancipate a child if he achieves poor grades.

An illustrative is the case of Keno v. Pilgrim, A-395-04T3. Here, the plaintiff, Deborah Keno, appealed from two orders entered in the Family Part, Essex County, on October 2004. The first order was entered on October 1, 2004. This order denied the plaintiff’s request for an increase of child support from the defendant, Franklyn Pilgrim. The second order refused to vacate or modify a July 26, 2004 order that emancipated the parties’ daughter.

The plaintiff and the defendant met in 1983, and they had one daughter, Nailah, who was born August 28, 1984. The parties were never married. The defendant had three other children from another marriage. On October 19, 1989, the plaintiff filed a complaint in Superior Court seeking the establishment of a support order against defendant and on July 20, 1990, an order was entered to compel an HLA test. This test confirmed that defendant was Nailah’s father. The court entered an initial order of support on April 3, 1991, and the parties have been in and out of court concerning various issues since that time. Thereafter, the plaintiff appealed the October 1, 2004 order that emancipated the parties’ daughter, effective on July 1, 2004.

Nailah was a student at the Livingston Campus of Rutgers University. In her first year at Rutgers, Nailah performed poorly. As a result, the court entered an order on March 26, 2004 that included the following terms:

Nailah Keno must obtain a B or better average in each course, with a minimum of 12 credits hours, for the Spring 2004 semester.  If she does, she will not be emancipated.

If Nailah does not obtain a B average, she will be emancipated and child support will be terminated. If her grades drop below the B requirement at any time after Spring 2004 semester, the child is emancipated and child support is terminated.

In summary, the trial judge ordered that the child must maintain a “B” average. The trial judge opined, “Whatever she finishes this semester with, if it’s a “B” average, defendant pays. If it’s not a “B” average, he’s off the hook, and maybe she has to take a year off and get a job and save money so she can go to school the next year. Maybe she has to go to school at night and work during the day or vice-versa.”

Although Nailah’s academic performance improved, she did not “hit the benchmark” as set by the court in the March 26, 2004 order. She did not achieve a “B” average in the Spring semester. The court reviewed her grades, and observed that “she’s got a cumulative average of 2.4 and 34 credits toward a degree. She needs ……..  120 credits for a Bachelor’s degree.”

The court acknowledged that Nailah had earned a 3.0 average for the Spring semester, but she did so with only three courses, having withdrawn from one course and having failed another.  Under the circumstances, the court concluded, there was no question that Nailah had failed to comply with the March 26, 2004 order. Consequently, the order emancipated her, effective as of July 1, 2004. The emancipation order was entered on July 26, 2004. In summary, the trial court emancipated the child because she failed to maintain a “B” average at Rutgers.

On appeal, the plaintiff argued that the trial court improperly emancipated Nailah based on her poor college grades. Moreover, the plaintiff argued that the judge failed to apply the correct  case law. The Appellate Division further held that the trial court utilized a solitary criterion to determine whether Nailah had moved beyond the parental sphere, and whether she obtained an independent status. The court held that a child’s early struggles at school does not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. Therefore, the Appellate Division held that the standard applied by the court was arbitrary, capricious and unreasonable. Accordingly, the Appellate Division held that as a matter of law, Nailah was not emancipated because her grades were poor.

Additionally, the Appellate Division opined that the judge failed to consider the full set of applicable standards and guidelines. See, Gac v. Gac, 351 N.J. Super. 54, 64 (App. Div. 2002), rev’d and remanded on other grounds, 186 N.J. 535 (2006). Instead, the trial court created an artificial and arbitrary standard that attached controlling significance to the child’s grades. New Jersey law does not mandate that a student attain a particular GPA in order to receive contribution from his or her parents. See, Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999); (affirming trial court’s decision ordering father to continue contributing to his daughter’s college education without giving any relevance to the daughter’s 2.36 cumulative GPA.)

2. Are there any cases that hold that if a child achieves poor grades then he can be emancipated?

Yes, in the recent case of Hahn v. Rasmussen, A-5937–07T2, the trial court did in fact emancipate a child because she only achieved a GPA of 1.77. In this case, the plaintiff filed an appeal of a post-judgment order that was entered on May 15, 2008. In this order the trial court granted the defendant’s motion to emancipate the child. The trial court found that the child’s performance in college was very problematic. The child failed two courses and she only achieved a GAP of 1.77. The trial court recognized that although the child still lived with the plaintiff, the child had established an independent identity by “buying her own automobile and obligating herself to car payments, insurance and maintenance,” and by working twenty-five hours a week at a local bank.

On appeal, the Appellate Division upheld the trial court, and it agreed that the child was emancipated because she achieved a GPA of only 1.77.

3. What should I do if I am paying my hard earned child support and my son is only getting C’s and D’s at community college?

I would advise you to write your former wife and advise her that you are very concerned that your son is performing miserably in community college. Thereafter, I would also advise you to  file a motion to request that the court emancipate the child based on his poor grades. In nine out of ten cases the judge will not emancipate the child on your first emancipation motion. In your first motion most judges will “lay down the law” and order that the child must improve his grades for the next semester. If your son still is getting C’s and D’s in the next semester, then you should file another emancipation motion. Thereafter, most family court judges will finally emancipate your son.

This may ultimately be a “Phyric” victory. You may be successful in emancipating your son. However, in the long run your son will not be able to “max out” his potential. Moreover, if your son can’t find a job, then he will most likely by “shaking you down” for money in the future. In short, you just can’t win! You could save yourself a few bucks in the short term by emancipating your son. However, in the long run if your son can’t make it in our very competitive world because of a lack of a quality education, then he will be trying to sponge off you. In summary, if you analyze the total picture you actually could be worse off financially if you emancipate your child early before he finishes college. This logic sounds counter-intuitive but it is largely true.

1. Are there legal grounds to file a motion for retroactive college contribution?

This is a great issue that arises in most college contribution motions. In many college contribution cases they really turn into a massive civil litigation with “big bucks” on the line. Quite often the divorced father has moved on and gotten remarried. In many cases, the father “blows off” paying for the first few years of college for his kids who were born from his first marriage. The custodial parent then often gets fed up and then ultimately files a motion for current college contribution. Moreover, the wife often requests the payment for college contribution for the child’s freshman,  sophomore or junior year of college. Once you eventually get to court, then it is very common that  $50,000 or more retroactive college expenses are “on the table.” The stakes get very high indeed! I have had one college contribution case that went to a plenary hearing and approximately $70,000 in retroactive college tuition and related expenses were at issue. If the father lost his case, then he would have to reimburse the mother and the college $70,000.

As in the great majority of family law issues there is no definitive answer to this legal question. However, the recent reported case law indicates that the courts are now very conservative on awarding retroactive contribution. However, each case stands on its own merits. One twist in the facts could change the entire outcome. Moreover, as always there is a tremendous amount of randomness and subjectivity in the family court. You could file a motion to request college contribution before ten different judges, and receive 10 different court rulings. For better or for worse this is how college contributions motions are handled.

2. Could you please cite any recent case law that addresses the issue of retroactive college contribution?

A very recent case is the Appellate Division holding of Kmetz v. Fusaro,  Decided October 9, 2009, Docket No. A-5870-07T3. Here, the defendant Richard Fusaro appealed the trial court’s order that required him to contribute $58,703.73 toward the college costs of his daughter.

On appeal, the Appellate Division held that the trial court correctly required the defendant to make a further contribution to his daughter’s education for the last semester of her junior year and for her entire senior year at college. Nonetheless, the Appellate Division opined that based on their analysis under Gac v. Gac, 186 N.J. 535 (2006), the defendant should not have been required to make any further contribution to his daughter’s freshman, sophomore, and first semester junior years. The court held that the plaintiff-wife did not request the defendant to pay for those terms until those semesters had already ended. Finally, the Appellate Division held that based under the circumstances, it would be inequitable to require him to do so retroactively.

More specifically, the defendant and plaintiff were married on September 29, 1979. They had one child, a daughter who was born in 1986. They were divorced on March 3, 1995. Their property settlement agreement contains the following provision regarding funding for their daughter’s college education:

The parties acknowledge their desire for 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 resort to all available financial aid, scholarships and part-time and summer earnings.

After graduating from high school, the daughter then attended Marist College. The defendant voluntarily paid $1,500 each year toward her freshman and sophomore year college costs. In the summer between the sophomore and junior year, the plaintiff requested that defendant to increase his contribution because the daughter wanted to study abroad. Thus, the defendant increased his contribution to $2,000 that year. In the middle of the daughter’s junior year, the plaintiff’s attorney wrote the defendant a letter dated December 29, 2006, seeking additional contributions from him toward the daughter’s college expenses.

When the parties could not reach a mutual agreement on the amount of the defendant’s contributions, the plaintiff then filed a motion to compel for additional college payment. The plaintiff’s motion requested to compel the defendant to contribute to the daughter’s college expenses for prior years. The daughter’s college expenses, after deducting scholarships, grants, and loans, totaled $96,255 for four years, broken down by year as follows: freshman year – $21,607; sophomore year – $23,981; junior year $27,026; and senior year $21,509. The defendant contributed a total of $7,500 toward these expenses. He also paid $200 a week, for a total of $10,400 annually, in child support.

According to the CIS’s or the Case Information Statements filed by the parties, the defendant’s annual income in 2006 was $127,048 and his net worth was $97,195, consisting primarily of his 401K; plaintiff’s income in 2006 was $59,769 and her net worth was $51,948, also consisting primarily of her 401K. Both parties got remarried. In her motion, the plaintiff proposed that the parties divide the daughter’s four year college expenses based on the ratio of their incomes. Under this proposal, the defendant would be responsible for sixty-eight percent of the college costs.

The defendant then filed a cross-motion in opposition. He requested that the court order that his obligation to contribute to the college expenses was completely satisfied. Furthermore, he advised the court that he had lost his longtime employment with Schering-Plough and that he was out of work.

The court did not have oral argument. Instead, the trial court entered an order dated June 20, 2008,  that required the defendant to pay plaintiff $58,703.73 for retroactive college contribution. This sum represented his sixty-eight percent share of the college expenses, less the $7,500 he had already contributed. Furthermore, the defendant was required to pay the plaintiff $660 in counsel fees.

The defendant then appealed. His main legal argument was that the plaintiff’s application was untimely and barred by the court’s holding in Gac v. Gac, 186 N.J. 535 (2006). The defendant further contended that a plenary hearing was required in order to resolve two factual issues, namely whether he was consulted about his daughter’s choice of college and whether the plaintiff advised him that his contributions were insufficient.

In applying the Newburgh factors, the trial court found that (1) defendant would have contributed to the daughter’s college costs if the parties had remained married; (2) defendant reasonably expected his daughter to attend college and provided for that likelihood in the property settlement agreement; (3) the daughter’s cost of higher education was reduced by the substantial financial aid she received; (4) defendant has an ability to pay despite his loss of employment because his employment benefits continue until May 14, 2009; (5) the college and its costs were appropriate; (6) both parties have the financial means to contribute to the daughter’s college expenses; (7) the daughter had the requisite commitment and aptitude for higher education; (8), (9) and (10) the daughter’s financial resources, including scholarships, loans and grants and earnings were taken into account; (11) the record does not indicate that a strained relationship exists between the daughter and defendant; and (12) the relationship between the education and prior training and the overall goals of the child was met because the daughter was capable of performing in a higher education setting. The trial court thus concluded that all of the Newburgh factors favored defendant’s contribution to the daughter’s college education costs.

On appeal, the Appellate Division noted that the defendant has throughout the years made some contributions to his daughter’s college education costs. However, the court noted that the critical issue in this appeal was the amount of that contribution. The court stressed that when evaluating the trial court’s ruling on that issue, we must look to all of the Newburgh factors, including the father’s ability to pay, as well as the timeliness of the mother’s application for contribution. The Appellate Division emphasized held that a custodial parent or child should not wait until the college expenses are incurred and then seek reimbursement from the custodial parent. Gac v. Gac, supra, 186 N.J. at 546-47.

The Appellate Division further held that a parent or child seeking contribution towards the expenses of higher education should make the request before the education expenses are incurred. The court noted that as  soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The court stressed, that the failure to do so will weigh heavily against the grant of a future application.

In summary, the Appellate Division held that the plaintiff’s delay in seeking contribution, that resulted in the accumulation of $58,703.73 in college expenses was not reasonable. The court noted that this amount, was particularly harmful because the costs are high in proportion to defendant’s income and assets, and because he has lost his long-standing employment.

Based on these circumstances, the court concluded that under a fair balancing of the Newburgh factors in light of Gac, the defendant should not have to pay additional amounts for college expenses that were incurred before plaintiff made her demand in her attorney’s letter of December 29, 2006. Thus, the father did not have to pay for retroactive college contribution. Nonetheless, the court did require him to make payments for his proportionate share for those  college expenses incurred after that time.  Thus, the father was ordered to pay his proportionate share (sixty-eight percent) of the costs for the second semester of his daughter’s junior year, and for her entire senior year at Marist College.

3. What other legal case(s) are “on point” on the issue of retroactive college contribution?

Another interesting case is Keegan v. Keegan,  A-9-98T1. Here, the father had a legal obligation to pay for retroactive college contribution. The parties were divorced in 1994. In April 1998, Mr. Keegan filed a notice of motion for emancipation and modification of alimony and child support. More specifically, Mr. Keegan requested to:  (1) emancipate their oldest daughter (Jennifer) who graduated from college in May 1998; (2) to emancipate their second daughter (Lea) who ended her full-time college status and began working on a full-time basis; and (3) to modify his child support obligation for their youngest daughter (Michele) who was in college at the time.

In response, Ms. Keegan filed a cross-motion to request: (1) to  collect arrears for Jennifer’s college expenses; (2) for retroactive contribution for Lea’s college expenses and denial of her emancipation; and (3) for contribution for college expenses associated with Michele.

On June 3, 1998, after conducting a hearing on cross-motions, the trial court issued an order that: (1) emancipated Jennifer, retroactive to May 29, 1998; (2) denied emancipation for Lea; (3) modified and reduced child support retroactive to May 29, 1998; (4) ordered Mr. Keegan to pay college expenses of $2,050.00 for Jennifer, $1,291.67 for Lea, and $7,279.58 for Michele; and (5) ordered Mr. Keegan to pay fifty-eight percent and Ms. Keegan to pay forty-two percent of any remaining college expenses for the two daughters not yet emancipated. Thereafter, Mr. Keegan filed a motion for reconsideration. The trial court denied Mr. Keegan’s motion for reconsideration.

Mr. Keegan then filed an appeal from the trial court’s order denying his motion to emancipate his daughter Lea, and for ordering him to reimburse Ms. Keegan for college expenses incurred for Lea and Michele. On appeal he raised the following points: (1) the trial court erred by retroactively modifying child support by ordering defendant to reimburse plaintiff for college expenses incurred; (2) in the alternative, the trial court erred by being inconsistent in retroactively increasing the college expense aspect of the child support obligation without retroactively reducing the corresponding direct support, since the law of the case inextricably linked both aspects of child support; (3) The trial court erred by failing to emancipate Lea during the period that she was not attending college on a full-time basis and reporting on her income tax returns that she was independent.

The Appellate Court denied the appeal and it upheld the trial court’s decision. Thus, Mr. Keegan was still legally required to contribute and to pay for the children’s prior years of college tuition and expenses. In short, Mr. Keegan was required to pay for retroactive college contribution for his children.

In summary, a review of the Kmetz and Keegan cases clearly prove my point that there is not enough uniformity in New Jersey family court case law. This lack of uniformity ultimately creates a massive amount of litigation that most New Jersey people simply can’t afford to pay for. I really don’t see any foreseeable solutions to this problem. In fact in my professional opinion the area of college contribution is just simply getting more esoteric and theoretical in nature. The bottom line is that the parents should try to save their money from litigating with other, and use these funds to pay for the children’s college. If this is not possible, then I strongly believe that the family courts should try to create some type of process to handle college contribution motions that are as not as time consuming and expensive as they are currently. Plenary hearings routinely cost between $5,000 to $10,000 in legal fees. The current reality is that litigating college contribution motions is in many instances as complex and expensive as the parties’ original divorce case was. I strongly believe that the area of law on college contribution should be reformed to create a more streamlined and cost effective legal process. In many college contribution cases the litigation can take almost two years or more to complete. In closing, keep these points in mind if you “get caught up” in a Newburgh/Arrigo hearing.

Any college contribution motion should be filed immediately once the child has received his acceptance letters and any financial aid award. I strongly suggest that any motion for college contribution should be filed in January or February before the child graduates from high school. For all practical purposes, any college contribution motion should be filed no later than the beginning of May. By the month of May, even if the child has not received all of his acceptance letters, the custodial parent should have the majority of the information necessary to submit a complete college contribution motion.

The courts almost always will allow the submission of additional information as it becomes available. For example, a child may have been accepted to college as of January 1. However, he will not receive his financial aid package until a much later date. Once the financial aid package becomes, then this information can be presented by way of a supplemental certification, or exchanged during discovery.

It is a major mistake to wait until the summer such as until July or August to file your motion. If you file your motion too late, then there is a very good chance that your child may not be able to attend his first class because the motion has not been ruled on yet. Moreover, keep in mind that the courts are slower in the summer. Most judges take their vacations in the summer. There is a strong tendency that motions drag on in the summer time because of the judge’s and opposing lawyers vacation schedules. In summary, the timing of filing a college contribution motion is of critical importance. If you file it too late, then your child may miss the first semester of his college. Thus, he may wind up going to Middlesex County Community College or any other local community college.

The parties can always agree by way of a settlement agreement or via a consent order to fix the payment arrangement for college expenses. In the world of your local family court the constant mantra is always to try to settle your dispute with your ex spouse. A settlement agreement is almost always enforceable it if voluntary, fair and equitable. Schlemm v. Schlemm, 311 N.J. 557 (1960).

Thus, if the parties’ agreement spells out with detail the terms of parental contribution, then in the majority of the cases the court will enforce it. If the parties agree to equally share for the cost of college for the child, then the court almost always will enforce this agreement. Meanwhile, if the parties PSA has no agreement as to college contribution, then the court must conduct an independent review of the Newburgh factors.

In summary, the parties can waste all of their money fighting over who is paying for college. I don’t agree with all of the complexity of New Jersey law on the issue college contribution. However, “it is what it is.” In my travels, I have seen many warring ex spouses spend more on litigating college contribution issues than they did in their divorce case. If at all possible you should always try to spell out the terms of college contribution in your PSA, or your should try to resolve your case via a consent order.