Divorce FAQ's
1. What type of college related expenses can I request that my former husband pay our son’s college education?
It is important to emphasize that college expenses are more than simply tuition, room and board. When you draft your college contribution motion, it is important to include as many college related expenses as possible. These types of expenses include student fees, lab fees, books, computers, lap tops, lab fees, software, supplies, transportation costs, and fees for studying abroad. These expenses can easily add up to thousands of dollars each year. It is critical to include as many college related expenses as possible in your college contribution motion. If you don’t request reimbursement for a college related expense then you won’t receive it. Remember that there is no harm in asking!
2. My husband recently won the lottery after our son graduated from college. I am now in debt for almost $100,000 from paying for our son’s college education. Meanwhile, my deadbeat ex-husband only contributed $25,000 toward our son’s college education. Can I now go back to court and request additional contribution from my former husband even if our son has since graduated?
Yes. If a party’s financial circumstances should improve even after a child has graduated, then the parent who has received the financial good fortune may still be required to increase his contribution toward college expenses even if the child has graduated. An illustrative case is Whiteman v. Whiteman, 228 N.J. Super. 346 (App. Div. 1988). Here, the father received a substantial inheritance three months after the parties’ daughter graduated from college. The Appellate Division held that a prior court order that denied the reimbursement of college expenses did not bar the court from a rehearing the case. The Appellate Division further held that the trial court could require the father to reimburse the mother for college expenses even if these expenses were retroactive.
In the Whiteman case both parties had economic problems after their divorce. The defendant had sporadic employment and he was on welfare. In the year of 1982, the plaintiff filed an application with the court to compel the defendant to pay for his share of the college expenses for the parties oldest child who was attending Trenton State College. The court denied the plaintiff’s request, and therefore the wife had to incur the financial burden of paying for their daughter’s college expenses. The Appellate Division reasoned that if the defendant received his inheritance earlier, then he would have been responsible for sharing in the financial costs associated with college. The court further held that it would be patently unfair to permit the defendant to avoid his parental responsibility to pay for his daughter’s college education. Therefore, the case was remanded to the trial court, to reconsider how much the father had to contribute toward his daughter’s college education.
3. Are a new spouse’s income and assets relevant to assess a parent’s financial resources in a college contribution case?
Yes. A current spouse’s income is very relevant to assess a parent’s financial resources, and it may impact the amount of a parent’s contribution toward college expenses. There is not set formula to determine how much of an impact a new spouse’s income has in a college contribution motion. Two current cases specifically hold that a new spouse’s income is relevant in college contribution motions. These two cases are Hudson v. Hudson, 315 N.J. 577 (App. Div. 1998), and Ribner v. Ribner, 290 N.J. 66 (App. Div. 1996).
4. Can a parent’s estate be compelled to pay for a child’s college expenses?
Yes. It is very conceivable that a parent could die when a child is attending college or graduate school. Thereafter, the important question then arises whether the parent’s estate can be required to pay for a child’s college and related costs. These type of cases often turns into a nightmare. Quite often the children and the second wife of the deceased parent battle for the estate. The children earnestly believe that it is their birth right to use their inheritance to pay for college. Meanwhile, the widow is desperate to use the inheritance to live on.
It is clear that a parent’s estate may be required to pay for a child’s college education. There are two major cases on this legal issue. In the case of Kiken v. Kiken, 149, N.J. 441 (1997), the New Jersey Supreme Court held that the trial court had the authority to order the father’s estate to contribution to the costs of his son’s college education. The father’s estate was bound to pay for college under the provisions of the divorce agreement.
The second important case is Raynor v. Raynor, 319 N.J. Super. 519 (App. Div. 1999). Here, the former wife sought to compel the estate of her former husband to pay for 50% of the college expenses for the parties’ two sons. The final judgment of divorce required the decedent to continue his life insurance policy (through his employer) naming the mother as the trust and the children as irrevocable beneficiaries until the children were emancipated.
The decedent had two life insurance policies. One policy was a federal employee’s group life policy, and he had a separate private life insurance policy with Prime America. While the husband was very ill, he changed the beneficiary designation on the federal policy naming his second wife as a beneficiary of 76 per cent and his children as beneficiaries of 24 per cent of the policy proceeds. The decedent’s new wife was also the sole beneficiary of the private policy that had a death benefit of $130,000.
The plaintiff contested the distribution of the federal life insurance policy. She claimed that the children were entitled to 100% of the proceeds. The second wife claimed that the life insurance proceeds were exempt and not part of child support. The case was then appealed. The Appellate Division held that the defendant’s life insurance policies were not exempt from his child support obligations as well as his obligation to pay college expenses even though the life insurance policies named the defendant’s second wife as the beneficiary. The court reasoned that a college contribution is just anther form of child support.
In summary, the court ruled that a sizable amount of both life insurance polices could be used to fund the children’s college education, even though the policies named the second wife as the primary beneficiary. The important point of both of the Kiken and Raynor cases is that child support and college contribution do not automatically end if a parent dies. Claims can be made against the deceased parent’s estate to assist the surviving children pay for their college.
5. Should a child also be legally required to contribute to college costs?
A very important issue in college contribution cases is whether the court believes that a child should contribute? A child’s income from acting modeling, a child’s assets from custodial accords, life insurance proceeds, and other inherited assets may be taken into account in determining a parent’s responsibility to pay for college. In my experience, most judges attribute between 10% and 30% of the cost of paying for college as the responsibility of the child. Most judges will require that the child max out all of the loans, financial aid, and scholarships that are available. Thereafter, the judge will apportion the payment of college costs after subtracting 10% to 30% of this amount as the responsibility of the child. Each case is fact sensitive, and will depend on the individual judge. Some judges will not attribute any responsibility to pay for college on the child. Meanwhile, some judges won’t even consider a college contribution motion unless the applicant provides proof that the child has exhausted all efforts to obtain financial aid, apply for grants, scholarships, and work study. In summary, college contribution cases are very subjective, and the results can vary significantly from judge to judge.
6. Is a parent still legally required to pay for college if the child has a record of poor academic performance?
Maybe. Each college contribution case stands on its own individual merits. Moreover, the range of decisions varies widely amongst each individual judge. The seminal case of Newburgh v. Arrigo, 88 N.J. 529 (1982), clearly states that a factor is “the commitment to and the aptitude of the child for the requested education.” Id. At 545. If a child attends college and if he is not passing his classes, or if he does not take college seriously, then it is entirely possible for a parent to file an application to terminate any of his financial obligations to pay for college.
An illustrative case is Robinson v. Bodden. This was an unpublished case. Here, the child flunked out of Virginia State University. The father expected his son to produce a reasonable grade point average of at least 2.5. Both the mother and the father agreed that the child should not attend college for the following year. The child lived at the mother’s home, but he only obtained a part time job, and he spent most of his money on partying. Moreover, the defendant was arrested that year for a marijuana charge. Both the parents agreed that for the following year the son would enroll in a community college rather than returning to Virginia State. Moreover, the parents advised their child that if he wanted to return to Virginia State that he would only be able to attend part time and that he would need to obtain part-time employment to assist in pay for his expenses. Id. Finally, the parents agreed that their son must maintain a grade point aware of 2.5 or better.
The child ignored his parents, and he re-enrolled in Virginia State in August of 2004 as a full time student. The case eventually made it up to the Appellate Division. The court held that a parent is not automatically required to pay for a child’s college expenses if the child is not taking his college education seriously, and if he is attending college merely to have a good time.
7. What are the considerations in a college contribution case if a former spouse has younger children from a new marriage?
In college contribution cases it is quite common for either one or both spouses to remarry and have more children. A very important issue then arises if a non-custodial spouse is required to pay for one child to attend college, will there be enough funds to support his other children. Should the younger child be forced to attend a less expensive school because of the divorce. A college contribution case can be very costly and it can deplete the parties’ assets very quickly. If a spouse is defending against a college contribution case, and if he has additional children from a second marriage, then the strongest defense is that he must conserve his assets to raise all of his other children. A non-custodial parent should emphasize that his assets should be allocated equally amongst all of his children.
8. My son recently took time off between high school and college. He now wants me to pay for his college education. Am I legally required to pay for his college education after he has taken a hiatus?
In today’s world is very common for a child to take time off between high school and college. A key issue then often arises as to whether a parent is still legally responsible for paying for college after such a hiatus. The leading case on this legal issue is Sakovits v. Sakovits, 178 N.J. Super. 623 (Ch. Div. 1981). In this case the family court terminated the plaintiff’s child support obligations. The major question in the Sakovits case was whether a parent could still be legally required to pay for support after a child has been declared emancipated. The court noted that it was commonplace for a child to take a brief hiatus after graduating from high school. The court held that a child can still request college contribution even if he has been emancipated. Thus a parent can still be required to contribute to the college education of a child even if he has been emancipated.
In so called “hiatus” cases, the key issue is what constitutes a reasonable time frame for a hiatus. If a child has taken a year or two off between high school and college, then there is a very good chance that a college contribution application against a non-custodial parent could be successful. Moreover, please keep in mind that judicial decisions are extremely subjective. Some judges take the position that once a child is emancipated, then child support is over for ever. Meanwhile, other judges are very liberal, and they will reinstate child support if there are just reasons to do so.
Another illustrative case is Leotsakos v. Leotsakos, (N.J. Super. A.D. July 20, 2007). Here, the court also addressed the issue of a child’s hiatus during college. The child attended Rider University for a year and one half. Thereafter, the child then spent two and a half years working full time. Id. The Appellate Division disagreed with the trial court, and it held that the two year delay between the child’s dropping out of Rider, and wanting to return to college relieved the plaintiff of his obligation to pay for the child’s college costs. The Appellate Division further found that the child being out of school and working for two years does not, by itself, relieve the plaintiff of his agreement to pay the cost of the child’s education. The Appellate Division also took judicial notice that it was not uncommon for a child to start college, take a break, and return to complete their education at a later time.
9. Which parent fills out the financial aid forms for a child to apply college?
A key issue in many post-judgment divorce cases is which parent is responsible for applying for financial aid for the children when it is their time to attend college. The first step in applying for financial aid is to fill out a “Free Application for Federal Student Aid” which is commonly know as “FAFSA.” Most colleges and universities recommend that you fill out and submit the FAFSA application online. The U.S. Department of Education processes all FAFSA applications. Based on the information as provided in FAFSA, and the family’s income and resources, the government will then determine a reasonable contribution expected from the student and his/her parents. The Department of Education uses a formula prescribed by Congress to review all federal financial aid programs. Once the Department of Education has completed an evaluation of the FAFSA, then this information is sent to the student’s respective college or university. Thereafter, the college or university will then extend an offer of financial assistance to the student.
Another key issue in college contribution case is which parent fills out the FAFSA form? The custodial parent is responsible for filling out the FAFSA. Any child support and/or alimony that are received from the non-custodial parent must still be included on the FAFSA. It is important to note here that although the federal government does not consider the income or assets of the non-custodial parent in determining financial need, many private colleges do consider the non-custodial parent as a potential source of support. Therefore, many private colleges require a supplemental financial aid application fro that parent.
10. Will my level of child support be reduced if I contribute toward my child’s college education?
If a parent contributes toward the child’s college costs then in most cases this will reduce the level of child support that is being paid by the non-custodial parent. In many other states child support automatically ends once the child turns 18 years of age and he graduates from high school. However, in New Jersey child support will continue until the child is deemed emancipated. In my experience most judges will reduce child support by one third to one half if a non-custodial parent is also contributing toward the child’s college expenses. Each case is fact sensitive and it is largely dependent on the parties’ income. The courts don’t want to bankrupt the non-custodial spouse by requiring him to pay a full child support award and also for extremely expensive college tuition bills.
11. How is my child support obligation calculated when my son enters college?
A non-custodial parent is legally required to provide child support during the child’s college education. However, the child support guidelines may not apply to the calculation of same. The New Jersey Court Rules provide that the court has discretion whether to apply the child support guidelines to students over the age of 18 who commute to college. In the case of Hudson v. Hudson, 315 N.J. Super. 577 (App. Div. 1998), the court indicated that child support and a parent’s contribution to college expenses are two separate analyses that are closely related. The court indicated that the relationship between contribution to college and child support is not made with any formula but is fact sensitive.
12. I am now negotiating a PSA with my soon to be ex-wife. Can I now make a deal with her and offer to pay her some extra money in the divorce settlement, so that I won’t have to pay for college in the future?
The New Jersey courts take college contribution cases very seriously. A very illustrative case is Blum v. Adler, 279 N.J. Super. 1 (App. Div. 1994). Here, the court held that the parents can’t bargain away the rights of a child and thus eliminate their obligation to pay for college expenses. In the Blum case, the parties agreed to be bound by the law of Delaware. Subsequently, the former wife moved to New Jersey with the parties’ daughter. The PSA was silent on the issue of college contribution. The trial judge applied Delaware law. Therefore, child support stopped at age 18. Moreover, the court held that the father was not responsible for contributing to college costs. The Appellate Division reversed the trial court, and it held that the 18-year-old child was not emancipated because she was a full time student. The court further held that the daughter had a right to be supported by both parents, and that the father’s support obligation also included the right to college expenses. The court further held that the parents could not bargain away the child’s rights and thus eliminate their obligations to pay for her college expense.
Another important case is Johnson v. Bradbury, 233 N.J. Super. 129 (App. Div. 1989). Here, the 18-year-old plaintiff’s daughter sued both of her divorced parents for financial assistance to defray the costs of her college education. The court concluded that the parent obligation to support a child is enforceable not only at the insistence of the custodial parent against the non-custodial parent but at the child’s insistence as well. Therefore, not only can one parent demand contribution from the other parent for the higher education of a child, the child can also demand contribution form his or her parents.
In summary, there is no magical clause that a non-custodial parent can insert into the PSA to avoid paying for his child’s college education. It is important for any divorce litigant to completely understand that he may be legally obligated in the future to contribute to college educational expenses. Many clients are under the false assumption that child support automatically ends when the child turns 18. These same clients are often quite shocked when they learn that the legal duty to pay child support may still exist until a child attends college or event graduate school.
13. My son recently graduated from college and he now wants to attend law school. Do I have a legal obligation to provide support to my son even beyond graduation from college?
New Jersey courts are the most liberal courts in the United States when it comes to providing child support for children. New Jersey courts have extended a parent’s legal obligation to provide support even after a child graduates from college. Therefore, a parent can be legally obligated to pay child support when a child attends graduate school. Moreover, a parent can be legally required to pay for the cost for the child to attend graduate school. The seminal case on this legal issue is Ross v. Ross, 167 N.J. 441 (Ch. Div. 1979). In Ross, the court reviewed the issue of whether the non-custodial parent’s support obligation for a 23-year-old child should continue through her graduate school training. The court held that there was no clear cut off date that would entitle the father to a ruling that he was not required to contribute to his daughter’s graduate school education.
14. What is the legal standard that a court will use to determine if a parent has an obligation to assist a child pay for graduate school?
The Ross court also established the legal standard that a family court must use to determine if a parent has legal obligation to assist a child pay for graduate school. The threshold question is to determine if the parties had sent their child to graduate school and financed that school if there had not been a separation and divorce. The Ross court also enumerated six factors that should be considered in determining these type of cases:
a. The amount of support sought.
b. The ability of the non-custodial parent to pay that costs, and its relation to the type of schooling sought.
c. The financial position of the custodial parent.
d. The commitment and aptitude of the child the schooling in question.
e. The child’s relationship to the non-custodial paying parent.
f. The relationship of the schooling in question to any prior training and generally the relationship to the overall long term range goals of the child.
The Ross court further held that the child could not be considered emancipated until she finished law school. The court rejected the fathers contention that his child support should end once his daughter graduated from college. The court noted that there was no age fixed in the law when a child becomes emancipated. In summary, it is clear that a parent can be legally responsible for graduate school costs and/or paying for child support even after a child finishes college. Each case is determined on a case by case basis.
15. What is the law of college contribution in other states?
New Jersey takes the minority view and it legally requires parents to contribute to the support of their children during college. Most other states do not legally require divorced parents to financially contribute toward the college education of a child. In many cases, one or both parents may move to another state after the divorce is consummated in New Jersey. The legal issue then arises as to whether the college contribution laws of New Jersey or of another state applies. Given these considerations it is important to add a jurisdiction clause to any PSA or divorce judgment that specifies that New Jersey has jurisdiction over the case.
16. Will a New Jersey court compel a parent to pay for the college expenses of a child even though the state in which the support order was originally entered does not provide for such a responsibility?
This legal question was answered in the recent case of Marshak v. Weser, 390 N.J. Super. 387 (App. Div. 2007). The specific legal issue was whether a New Jersey court may compel a parent to pay for the college expenses of a child even though the state in which the support order was originally entered does not provide for such a responsibility?
The Appellate Division held that would not. Here, the trial court erred by entering an order that obligated the defendant father to pay for his son’s college expenses because under the Uniform Interstate Family Support Act (UIFSA) the state in which child support originated (Pennsylvania) did not provide for such relief. In reaching that a conclusion, the court relied on N.J.S.A. 2A:4-30.114(c), which prevents a New Jersey court from modifying any aspect of a child support order that may not be modified under the the law of the issuing state, and N.J.S.A. 2A:4-30.107(a), which requires a New Jersey court to defer to the child support order of a foreign jurisdiction and observed that the law of the issuing state governs the nature, extent, amount, and duration of child support. Further support for the court’s decision was found in the 2001 amendments to the Model Act and the comments thereto, which clarify that modifications to impose college tuition payments are not permissible where the law of the issuing state would not provide such support. Because Pennsylvania law does not require a parent to pay college expenses, the legislative intent and language of New Jersey’s UIFSA statute compel the conclusion that a courts can’t modify the Pennsylvania child support order to provide a longer duration than Pennsylvania law would allow.
This case is very important. New Jersey has some of the most liberal if not the most liberal support laws in the United States. New Jersey college contribution laws are extremely liberal. I have had one case wherein I received a court order to compel the father to pay for graduate school to enable the father’s son to attend a seminary school to become a priest. In this Marshak case, the father lived in Pennsylvania and this state does not have a law that requires a non-custodial parent to contribute toward college expenses. Therefore, the non-custodial mother registered the Pennsylvania support order in New Jersey. Therefore, the mother tried to use New Jersey college contribution laws to compel the father to pay for college. The Appellate Division would not go for this type of legal maneuvering. It is important to emphasize that if an out of state support order is registered in New Jersey, then our courts are bound to apply the law of the state wherein the order originally issued. Thus, the Marshak court held that it was legally bound to apply Pennsylvania family law in this case, and it could not apply New Jersey’s liberal college contributions laws.