When Divorced Parents Disagree About Who Pays for College.
It's the time of year when high school graduates begin preparing for their new lives as college freshmen. The stakes are high for these young adults, but they are also high for parents who must foot the bill. With today's soaring tuition costs, paying for college can be a challenge for any family. For divorced parents, there are added layers of complexity. What happens when a divorced parent can't or won't contribute to tuition payments, or disagrees with the child's college choice? For guidance, we can look to the handful of significant cases from recent decades in which the courts have grappled with the issue of parental college contributions.
College Contributions and the Law
New Jersey courts can order divorced parents to pay ongoing child support, including a contribution to post-secondary tuition and fees, for children who have graduated from high school and are pursuing higher education. This type of support is not governed by the child support formula and is instead calculated according to the factors set out in N.J.S.A. 2A:34-23a. Parents often agree during divorce settlements to share college expenses according to their respective incomes, but agreements reached when children are young cannot always predict a family's financial situation at college-decision time. Like child support awards, a parent can ask the court to modify the agreement to contribute to college costs, but modifying that agreement would ultimately be up to the judge.
The leading New Jersey case on college contributions, Newburgh v. Arrigo, 88 N.J. 529 (1982), states that, "in general, financially capable parents should contribute to the higher education of children who are qualified students" (at 544). The Newburgh court set out the following nonexclusive factors to be taken into account when evaluating contribution claims:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
(2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
(3) the amount of the contribution sought by the child for the cost of higher education;
(4) the parent's ability to pay that cost;
(5) the relationship of the requested contribution to the kind of school or course of study sought by the child;
(6) the financial resources of both parents;
(7) the commitment to and aptitude of the child for the requested education;
(8) the financial resources of the child, including assets owned individually or held in custodianship or trust;
(9) the ability of the child to earn income during the school year or on vacation;
(10) the availability of financial aid in the form of college grants and loans;
(11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
(12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. While Newburgh is the leading case in New Jersey, the expectation that divorced parents would contribute to college expenses did not begin with Newburgh. Previously, the case of Nebel v. Nebel, 103 N.J. Super. 216 (App. Div. 1968), limited the obligation to a share of the cost of a quality state university, establishing the so-called "Rutgers rule." By enumerating a lengthy list of factors, the Newburgh case broadened the courts' ability to determine parental contributions. Courts began to look at each family's situation on a case-by-case basis, evaluating the reasonableness of a child's college choice and the availability of all potential financial resources, including parental contributions. As a result, non-custodial parents frequently focused on factor 11, objecting to paying for the education of adult children who had either chosen not to continue any kind of relationship with the parent, or had declined to enter into discussions with that parent regarding educational plans.
Do Paying Parents Get a Say in Where Their Child Attends College? InGac v. Gac, 186 N.J. 535 (2006), the New Jersey Supreme Court decided that a father who had not had a relationship with his daughter since she was five years old but had attempted to re-establish the relationship and consistently paid child support, was not responsible for helping her repay student loans. The daughter had not sought the father's input before selecting a college, indicating on her college applications that his whereabouts were unknown. A trial court ordered the father to contribute to the loan repayments, but the Supreme Court, while stating that a relationship between parent and child was not required for the child to request college contributions, focused on the late timing of the request, and indicated that it should have been made as soon as practical and, at a minimum, before incurring the educational expenses.
Even when an adult child makes a timely request, the child's failure to discuss options with the paying parent may limit the parent's responsibility. In Moss v. Nedas, 674 A.2d 174 (App. Div. 1996), the parents had an agreement to share college costs. Their daughter chose to attend Sarah Lawrence, an expensive private school, over her father's objections. Initially the court was sympathetic to the daughter's choice, as she had a visual disability and was thriving in the college's small community. However, when she chose to transfer to another private school without informing her father in any way except to request transfer of the payments, the court decided that he should no longer be required to contribute.
In Finger v. Zenn, 335 N.J. Super. 438 (App. Div. 2000), the parents also had an agreement to share costs and, in this case, the son did discuss options with his father before applying to George Washington University and Penn State. After being rejected from Penn State, he modified his application to George Washington for early admission and was accepted. His father then objected to the cost of George Washington and asked the court to limit his financial contribution to half the cost of Rutgers. The court rejected his request, noting that during discussions he had suggested that his son apply to Lafayette, another private school, but had never suggested that he apply to Rutgers. Under those circumstances the court viewed the son's decision to attend George Washington as reasonable.
Can a 'Bad Relationship' Terminate Tuition Obligations?
The parents in Black v. Black, 436 N.J. Super. 130 (Ch. Div. 2013), had agreed to both contribute to the cost of college for all three of their children. Their oldest son, CB, did not maintain a relationship with his father post-divorce and refused to participate in parent-child counseling. CB matriculated at Rutgers and wished to transfer after his freshman year to the University of Miami, a significantly more expensive private school. The mother filed a motion to compel the father to contribute to the costs of both schools. The court found that CB lacked any apparent compelling reason for refusing to participate in reconciliation counseling with his father, and that both father and son had probably contributed to the rift in their relationship. Because the father credibly represented an ongoing desire to improve the relationship, Judge Jones enforced the father's obligation to make a tuition contribution, but made it expressly contingent on the son's participation in a minimum of five father-son counseling sessions.The Disappearing Rutgers Rule
The Nebel case was decided at a time when the costs of college were nowhere near the exorbitant levels of today. Nevertheless, the cases decided under Newburgh establish that a factor analysis will sometimes justify contributions to a private college. The Finger court pointed to the superior financial means of the parents in that case, and disapproved of any reading of Nebel that placed a ceiling on a divorced parent's contributions. The Black court, however, emphasized the importance of considering the potential availability of less expensive colleges, both private and public, observing that even when parents have stipulated to contribute, no parent should be expected to pay more than he or she could reasonably afford. The Black court also considered the needs of younger children. Rather than order the parents to pay a percentage of tuition and fees to either Rutgers or the University of Miami, the court tailored its order to the parents' respective financial means, ordering each of them to set aside a specific amount of money to be divided among all three children.
Can Tuition Support Hinge on Good Grades?
A child's aptitude for and commitment to a chosen course of study is also a Newburgh factor. It is reasonable, therefore for a parent to expect satisfactory progress as a condition to footing the bills. In Van Brunt v. Van Brunt, 419 N.J. Super. 327 (Ch. Div. 2010), the court stated that a child could not raise Family Educational Rights and Privacy Act (FERPA) privacy rights against a parent contributing to college costs. The custodial parent and the dependent student share responsibility for providing progress reports, transcripts and/or grades to a paying non-custodial parent if requested. If the non-custodial parent wants direct access to the child's records, the child could voluntarily waive FERPA, or the parent could request a court order overriding FERPA rights.
Are We Entering a New Era of Parental Obligation?
Although several cases, including Newburgh, have suggested that under certain circumstances, parents might have a responsibility to pay for a child's professional or graduate education as well as undergraduate education, effective Feb. 1, 2017, Bill S-1046/A-272 could drastically limit this potential obligation. This new law provides that child support must absolutely end by the time a child turns 23 years old. Any payment agreements relating to adult children over age 23 will be interpreted under contract law only, not as agreements to extend child support.
What does this new era mean for today's college kids? If parental contributions are a make-or-break factor for attending college, it might be best for them to buckle down and get that degree before their 23rd birthday. Once the new law goes into effect, getting Mom and Dad to pay for college after they turn 23 years old may become next to impossible.
--- Originally published in New Jersey Law Journal. Check out the original here.
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