One of the most common post divorce litigation issues that I see involves the selection and contribution toward college costs. Usually divorce agreements fall into two categories; those that specify exactly what the parties’ contribution toward college will be and those that indicate that a determination of the parties’ contribution will “abide the event,” and be based upon a consideration of the parties’ abilities to pay and the other common law factors found in the seminal case Newburgh v. Arrigo. Both of these provisions often lead to litigation because of the failure to be able to reach agreement as to not only which college should the child or children choose (the costs of which can vary in staggering amounts), but also the parties’ abilities to contribute to these costs.
What is the law around college contribution?
In New Jersey parents have an obligation to contribute toward the college education of their children and, in fact, college contribution is considered a form of chid support. However, the determination of whether parents should be required to contribute toward their child’s college education costs is a fact sensitive determination. The seminal case utilized to determine whether parents should contribute to their children’s college expenses is Newburgh v Arrigo, which sets forth a 12 factor analysis. These factors are as follows:
1 whether the parent would have contributed toward the costs of the requested higher education if they still lived together
the background values and goals of the parent and the reasonableness of the expectation that the child attain higher education
the amount sought by the child for the cost of higher education
the ability of the parent to pay that cost
the relationship of the requested contribution to the kind of school or course of study sought by the child
the financial resources of both parents
the commitment to and aptitude of the child for the requested education
the financial resources of the child, including assets owned individually or held in custodianship or trust
the ability of the child to earn income during the school year or on vacation
the availability of financial aid in the form of college grants and loans
the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance, and
the relationship of the education requested to any prior training and to the overall long-range goals of the child.
However, these factors do not apply and are not to be considered in cases in which the parties have reached a specific agreement as to their contribution toward college unless it is proven that the parties’ agreement is unfair and inequitable or their has been a material change in circumstance since the agreement. (See Avellino v Catabran)
What if I have an Estranged Relationship with my child?
The Answer is – it depends. In my recent Appellate Division case K.L.B.v. R.B the Court upheld the parties’ agreement for a specific percentage contribution toward their children’s college costs despite the father’s estrangement from his children because there was no material change in circumstance from this estrangement which had existed at the time of the entry of the parties’ Marital Settlement Agreement.
However, the Courts in New Jersey have excused parents under other fact patterns (after a fact sensitive analysis) from their obligation toward their children’s college expenses. In Gac v. Gac, a child sought to have her estranged father pay her college loans. The court examined the Newburgh factors and held that under the circumstances, the parent did not have to pay the child’s college loans. While the court clearly reinforced that a relationship between the parent and child was not necessary for the court to order that the estranged parent pay for higher education, in this case the parent was relieved of his obligation because he was never asked to pay for college until after the expense had been incurred and he was never consulted about his daughter’s decisions to pursue higher education. The Gac case provides some general guidelines to consider in your college contribution case: 1) a child or his/her parent should make the request of the noncustodial parent for contribution before incurring college debt; 2) the parent or child should discuss with the other parent the choice to pursue higher education; and 3) the issue should be brought before the court prior to incurring the debt.
In 2014 , the chancery division case of Black v. Black again dealt with this issue of estrangement as a consideration in a college contribution case. The court again held that a parents’ contribution to college costs in New Jersey is not dependent on a close or non-estranged parent-child relationship. The court noted its concern that a parent not be able to get out of paying for college by intentionally avoiding any relationship with their child. In this case, it was the child who did not want a relationship with the father. Noting that the parents had previously agreed that father and son would attend counseling together so that they could work on their relationship, and that they did not in fact attend counseling sessions, the court ordered that the father’s contribution toward his son’s college was contingent on the son’s obligation to attend joint counseling sessions with his father. (It should be noted that this case is not considered binding on the higher courts because it is a chancery or trial court level case).
What does this mean for my case?
If you are in the middle of a post-divorce litigation over college contribution, it is very important that your counsel understand not only the case law surrounding college contribution but the specific facts of your case- as these cases really turn on a fact-sensitive analysis. If you are in the middle of the divorce process and have not yet signed a Marital Settlement Agreement, it is also extremely important that your agreement reflect your intent regarding your contribution toward your child’s college education as well as to protect you with regard to your potential future contribution toward these costs.
To find out more about contribution toward college expenses in divorce, please contact Georgia Fraser, Esq. at Fraser Family Law Office LLC at 609-223-2099.