Who pays for college after the divorce?

Posted on August 13, 2012 by Sandy Durst

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.

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LOGD is looking to hire skilled attorneys with a portable book of business.

Posted on August 8, 2012 by Sandy Durst

Are you an experienced attorney with a portable book looking to gain more control over your career and receive a higher payout?  Lynch, Osborne, Gilmore & Durst in Princeton, NJ is looking to add one or more attorneys with a practice compatible with ours (view www.logdlawfirrm.com to see our current practice areas.  LOGD offers a convenient downtown Princeton location, a collegial atmosphere and a high degree of autonomy with administrative support and full benefits.  All candidates must have a portable book of business and be licensed in New Jersey. E-mail your cover letter and resume in confidence to Sandy Durst, Esq. at [email protected] .  Only candidates selected for an interview will be contacted.

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Prior testimony at a domestic violence trial may be used to impeach credibility.

Posted on August 6, 2012 by Sandy Durst

A recently decided Appellate decision which was approved for publication, the court clarifies the rules on when and how  testimony from a domestic violence trial (which is a civil proceeding) may be used in a subsequent criminal case.  This decision highlights the need for thorough preparation of proposed testimony to make sure the witnesses’ statements are accurate, truthful, and consistent.

CRIMINAL LAW AND PROCEDURE — STATEMENTS
14-2-7241 State v. Duprey, App. Div. (Waugh, J.A.D.) (15 pp.) This case required us to determine whether testimony given by the plaintiff or defendant during the trial of a domestic-violence matter can be used for the purposes of cross-examination in a related criminal trial. We determined that a broad application of the language of N.J.S.A. 2C:25-29(a), which provides that “testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant,” would impair a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Legislature did not intend to permit a criminal defendant who testifies at his criminal trial to be immune from cross-examination based on prior inconsistent statements made under oath at the DV trial. We held that testimony from a DV trial can be used for the limited purpose of cross-examination in a manner consistent with the opinion, but cannot be used as affirmative evidence except as permitted by the statute.

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Is child support appropriate for an adult child? Maybe, says the court.

Posted on August 5, 2012 by Sandy Durst

 There are certain circumstances that arise which may warrant the ongoing payment of child support even after a child reaches adulthood.  The following excerpt from the NJ LAw Journal illustrates one such situation and highlights what each party must show to prevail on their claim.

FAMILY LAW — CHILD SUPPORT
20-2-7040 LaMotta v. LaMotta, App. Div. (per curiam) (6 pp.) In this post-judgment matrimonial matter, plaintiff appeals from an order denying his motion for reconsideration of a prior order denying his motion to terminate or modify child support, and his request for a medical evaluation to determine whether his estranged daughter is emancipated. Plaintiff’s motion to terminate or modify child support related to his youngest child (“Tammy”), who was thirty-one years old. Plaintiff certified that Tammy sustained a brain aneurysm when she was seventeen, which left her “partially disabled,” and he continued to pay child support due to her medical condition. Plaintiff alleged that the medical information provided by defendant did not show that Tammy was unable to support herself. Plaintiff argues that he is entitled to discovery, such as a medical examination of his daughter, and a plenary hearing to determine whether his daughter is totally disabled or whether she is capable of some type of employment. The appellate panel agrees and remands for a plenary hearing, finding there are genuine factual disputes regarding Tammy’s medical status and her ability to support herself or contribute to her own support.

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Intent to harm is required for a finding of domestic violence

Posted on August 4, 2012 by Sandy Durst

 

Here is a case that brings some clarity to the often muddy waters of NJ domestic violence law.  The law rightfully recognizes that couples may often have legitmate reasons to argue and that not all fights warrant a finding of domestic violence even when there is a physical altercation.  However, the best practice is to avoid ALL physical exchanges rather than rely on the findings of this case.  Abuse, whether physical, verbal, or emotional,  is never acceptable

FAMILY LAW — DOMESTIC VIOLENCE
20-2-7041 C.L. v. J.C., App. Div. (per curiam) (14 pp.) Defendant appeals from a final restraining order (FRO) entered against him and in favor of plaintiff based on a finding of the predicate act of assault under the Prevention of Domestic Violence Act. In part, he challenges the record as insufficient to support the offense and to warrant the issuance of restraints under the Act. The appellate panel agrees and reverses. The record does not support a finding of intent to injure. Plaintiff, understandably dismayed upon learning of defendant’s infidelity, confronted defendant in the supermarket, would not leave the store when he asked her to do so, and charged back into the store a second time to confront defendant and the “other woman” when defendant asked plaintiff and their son to go home and they would discuss the matter later. The court recognized that there was a fracas at the house with defendant’s family justifiably angry at defendant. Similarly, the court’s finding of assault at the house was based on plaintiff being “pushed aside” and falling to the ground when “she tried to intervene” in an altercation between defendant and one of their sons. That clearly does not evidence an intent by defendant to cause injury to plaintiff. Further, plaintiff did not testify with any specificity about a history of abuse or prior domestic violence and the court made no such finding. Nor did the court assess plaintiff’s need for final restraints to protect against immediate danger or future acts of domestic violence.

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