Update: Divorced Parents’ Obligation to Pay for College in New Jersey
Feb 2, 2022 | Written by: | Share
Throughout the years, we have addressed the issue of required college contributions by divorced parents in multiple blogs, including:
- In 2015, Can Court Order Divorced Parent to Pay Child’s College Tuition?
- In 2017, Can a Court Force You to Pay For Your Child’s College, Even If You and Your Former Spouse Agree Not to Do So?
- In 2018, How is a Parent’s Contribution to a Child’s College Education Determined in a Divorce Action?
- In 2019, Does a Parent’s “Strained” Relationship with a Child Obviate the Parent’s Obligation to Contribute to College?
The above articles are relevant to this article because the law is an ever-evolving subject matter and, in 2021, the NJ Appellate Division issued an unpublished opinion further addressing these issues. Regardless of which side of this argument you may be on, it is very emotional and polarizing, as it involves the education of children and can be a very expensive proposition.
On July 13, 2021, the Appellate Division issued an unpublished decision of Rasmussen v. Rasmussen, in which the father appealed two family court orders that required him to reimburse the mother (ex-wife) for tuition costs and medical expenses. This decision is an important update, in that the opinion clarifies the application of the case law and factors before or without the specifics of an underlying agreement and after. It should serve as a warning in drafting settlement agreements (perhaps depending on your position) and a guide for what even “vague” language that “punts” the issue may impose upon you.
In Rasmussen, the father acknowledged in the underlying divorce agreement that he had not seen the children for several months and voluntarily relinquished his right to parenting time. The agreement was silent as to the parents’ involvement in the children’s college decision-making process, but indicated that the parents agreed to “contribute to the college/trade school/post- secondary education expenses of the children.” This fact pattern is extremely important to the ultimate decision of the Appellate Division. Different facts lead to different law.
Thereafter, the parties’ daughter registered full-time in college and her mother sought to enforce the father’s obligation to contribute. The mother’s application was granted and the court found that the daughter had an “affirmative obligation to complete and sign a FERPA form, giving (her father) access to her grades, class schedule, and financial aid information every semester that she is in college, in order to have defendant contribute towards her college costs.”
The father then sought to undo the above order/terms, claiming that neither the plaintiff nor his daughter provided him with the FERPA form. The mother claimed that the form had been signed and provided to the school. The trial court denied the father’s motion in its entirety. It simultaneously granted the mother’s cross-motion for outstanding college expenses.
The defendant appealed, claiming the court erred in: 1) depriving him of due process; 2) incorrectly refusing to vacate or amend the February 22, 2019 order; 3) misapplying the law on emancipation; 4) failing to order a plenary hearing, particularly on the issue of whether the plaintiff provided a FERPA form for the Fall 2019 semester; 5) requiring him to reimburse his children's medical expenses despite the plaintiff's alleged violation of the February 22, 2019 order; and 6) ordering him to reimburse his daughter's college expenses.
The Appellate Division held:
In determining whether a separated or divorced parent is obligated to contribute to a child's college expenses, the Supreme Court set forth a dozen factors in Newburgh, 88 N.J. at 545, which the Legislature then essentially adopted in an amendment to the child support statute. Gac, 186 N.J. at 543; see N.J.S.A. 2A:34-23(a). Those factors are: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the 22 A-1417-19 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. [Newburgh, 88 N.J. at 545.]
In Gac, the Court applied these factors and held a father was not obligated to pay for his daughter's college expenses, in part because: the daughter had no relationship with the father and repeatedly, over several years, rejected his efforts to reestablish a relationship; the father, who received a modest income, was not kept abreast of his daughter's plans as they were being made, including her decision to attend an expensive private college instead of a less-expensive state college; and the daughter did not request assistance with paying for her college expenses until after she had graduated from college and was saddled with loans. Notably, the parties in Gac did not contemplate the father reimbursing the daughter's college expenses before those expenses were incurred. Ibid. Notwithstanding emancipation, "a parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child" beyond the presumptive age of emancipation, which is "enforceable if fair and equitable." Dolce, 383 N.J. Super. at 18.
When parents have created an enforceable agreement as to child support, "the parental obligation is not measured by legal duties otherwise imposed, but rather founded upon contractual and equitable principles." Ibid. (citation omitted); see also Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (noting duress, deception, fraud, undue pressure, unseemly conduct, incapacity, or incompetence may be grounds to vacate a settlement agreement). "If circumstances have changed in such a way that [the support provision] would no longer be equitable and fair, the court also remains free to alter the prior arrangement." Lepis, 83 N.J. at 161 n.12 (citations omitted). In such circumstances, application of the Newburgh factors may be appropriate despite the presence of an agreement to fund college expenses. See Moss, 289 N.J. Super. at 359-60.
However, "where parties to a divorce have reached an agreement regarding children attending college . . . and no showing has been made that the agreement should be vacated or modified, the Family Part need not apply all twelve factors pertinent to college expenses as identified in Newburgh . . . ." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 591 (App. Div. 2016).
In Moss, 289 N.J. Super. at 354, 356, the trial court initially required a father to pay a share of a daughter's college tuition in accordance with the parent's settlement agreement. After the daughter transferred to a different college without notifying the father, the court reduced his obligation for that school year and ordered that he would not be responsible for any further contribution "unless and until he is fully advised of all choices considered" by the daughter. Despite the "clear requirement that [the mother] communicate with [the father] concerning [the daughter]'s educational progress and plans," the daughter transferred schools again without notice to the father, and the court terminated his obligation because of the complete lack of communication. Id. at 359-60. We affirmed finding no abuse of discretion and noted prior arrangements can be set aside when a change in circumstances no longer makes them fair and equitable. Here, defendant and plaintiff unequivocally agreed in their PSA "to contribute to the . . . post-secondary education expenses of the [c]hildren."
Defendant further agreed as memorialized in the February 22, 2019 order that his proportion of the daughter's college expenses would be thirty percent. As such, defendant's obligations are "not measured by legal duties otherwise imposed," Dolce, 383 N.J. Super. at 18, but by his contractual agreement. Defendant's argument that he does not have a relationship with his daughter and that she perceives him as an "open check book" does not support extinguishing his obligations to contribute to his daughter's college expenses. As noted, defendant "voluntarily relinquished his parenting time rights" in the PSA and nonetheless agreed that contributing to his daughter's education was "fair, reasonable[,] and satisfactory." Defendant never asserted that he developed any relationship with his daughter between that time and the February 22, 2019 consent order. Even when defendant agreed to contribute thirty percent towards his daughter's education, she already completed her first semester without defendant's decision-making input. Further, defendant has not shown, based on the record before us, that his obligation to reimburse the college expenses of the parties' daughter should be extinguished based on the Newburgh factors, 88 N.J. at 543-45, or the principles expressed in Gac, N.J. at 545-46, and Moss, 289 N.J. Super. at 359-60. Defendant failed to specifically address the Newburgh factors, and, unlike Moss, defendant does not indicate he was expected to be involved in his daughter's college decision-making process. Nor does defendant cite evidence of his 26 A-1417-19 attempts to establish a relationship with his daughter or his lack of knowledge about the college expenses until she graduated college, such as in Gac.
The issues of college decision-making, contributions, and the like are extremely fact-sensitive.
The following states have laws or case law that give courts the authority to order a parent to pay for some form of college expenses: Alabama, Arizona, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Maryland, Massachusetts, Mississippi, Missouri, Montana, New Jersey, New York, North Dakota, Oregon, South Carolina, South Dakota, Utah, West Virginia, and Washington.
Despite the ages of your children, you may want to pay special attention to the negotiation of the college provision of your agreements and understand your obligations, as well as your child’s. Make sure you discuss these ideas with your attorney and/or consult counsel to understand your rights and obligations as it pertains to college.
A special note: although far too complex to fully address here, child support is typically modifiable upon a child leaving home and attending college. Keep this in mind when negotiating your terms, especially if your children are in high school!
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.