WHO PAYS FOR COLLEGE AFTER THE DIVORCE
By: Sandy Durst, Esq.
Lynch, Osborne, Gilmore & Durst
The issue of who pays for the college education of unemancipated children after a divorce is often emotionally charged and financially stressful topic. When a divorce occurs when the children are young it may seem to be premature to have the Judgment of Divorce address the issue of college education, and if a Property Settlement Agreement was entered into between the parties at the time of the divorce it generally states that the issue of who pays for college education will be determined at the time the children are applying to college. While such an approach is common, the better practice is to make at least a minimal mention of the issue. Even if the ultimate financial determinations cannot be made it would be wise to at least include a reference that the parties’ expect the children to attend college or not.
As with the other financial issues that comprise a divorce settlement agreement, it is always preferable if the litigants can arrive at their own settlement. Whether the issue of college expenses is decided by agreement or by the judge, the guiding principles are detailed in the case of Newburgh v. Arrigo. While the debate on whether or not divorced parents should be required to contribute towards the college expenses of their children when parents in an intact family do not, this case is still the controlling law in New Jersey.
The issues for consideration as detailed in Newburgh are: In evaluating a claim for contribution towards the cost of college education, it has been held by the Supreme Court of New Jersey that the courts should consider all relevant factors including (1)whether the parent, if still living with the children, 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 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 owed 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 advise and guidance and (12) the relationship of the education requested to any prior training and to the overall long range goals of the child.
When drafting a Property Settlement Agreement with
regards to college education it is common to require that if the unemancipated children of the marriage are capable of and have the ability to attend college, the Husband and Wife, to the extent that they may be financially able to do so, shall pay for or contribute to the college expenses of the child. It is prudent to define what expenses the parties include in the broad definition of “college expenses”. Taking the time to do this when drafting the Agreement can save time and money down the road. Examples of college expenses may include, but not be limited to, room, board, tuition, travel expenses to and from the custodial parent’s residence for major vacations, and all other miscellaneous fees.
The choice of a particular school is generally to be agreed upon between the Husband, Wife, and the child involved. This was reaffirmed in the case of Gac v. Gac. Failure to include the non-custodial parent in the selection process could relieve that parent from having to contribute. Both parties should cooperate in filing any financial aid forms and/or applying for student loans or scholarship money.
Because the cost of college education these days is exorbitant, this issue presents a difficult problem for families that have been affected by divorce.
The Newburgh Factors do not provide any clear answers; they simply provide guidance to the parents and to the judge. It remains a question of fact as to what percentage each parent should contribute to the college education of their children based on a combination of objective and subjective criteria. The objective or concrete facts such as the incomes of both parties, the assets of both parties, and the financial resources of the child are easy to determine. The other factors dealing with goals, commitment of the child and the child’s relationship with the parent are more subjective factors which are not as easily ascertainable. However difficult to establish, all of these factors are to be considered by the court.