New Jersey Divorce Lawyer Blog

Like so many divorce lawyers, I have been asked these questions countless times, both by clients, friends, acquaintances, and sometimes, even fellow lawyers. Usually, the questions are asked with a sense of puzzlement as to why someone would voluntarily choose divorce law.

These questions, and their many variations, never fail to elicit a wry, knowing smile from me, as I managed to become a divorce lawyer by pure chance. In law school, I concentrated in criminal law classes and clinics and found this area of law very interesting and challenging. After law school, I was lucky enough to obtain a judicial clerkship with Judge Vincent LeBlon in Middlesex County, who, at the time, was assigned to the Criminal Part. Shortly before my clerkship began, I learned that Judge LeBlon was to be rotated to the Family Part; hence, I too was being rotated to the Family Part. My initial reaction was not entirely a happy one because, after all, how does one do that kind of nasty, distasteful work?

Initially, I found the work of a Family Law Clerk to be emotionally taxing. As time went on, it became less so and eventually, I gained a deep appreciation of how the Court struggled to bring calm and order to sometimes chaotic family situations. I got to know many members of the family law bar, most from Middlesex County, and developed a great deal of respect for many of them.

Divorce lawyering, at its best, involves helping people resolve seemingly intractable issues in a fair and even handed manner so that they can move on with their lives. It entails reminding clients that not every issue is worth fighting over, and that sometimes, in the world of divorce law, the cost of victory can be higher than the cost of defeat. I have had to gently tell many clients that the goal of a divorce is not obtaining justice or vindication from the Court, but about ending a marriage with the least amount of emotional and financial damage.

It is well settled law in New Jersey that divorced or separated parents may have an obligation to contribute to the cost of their child's college, and even post-graduate, education. The leading case in this area, Newburgh v. Arrigo, 88 NJ 529, was decided in 1982 and sets forth a number of factors which the Court is to consider when determining whether, and how to, apportion the cost of a higher education. This post is not intended to present an exhaustive discussion of all of these factors, but instead, I want to focus on what I believe is the most significant (and overlooked) factor, a parent's ability to pay.

In practice, it is almost always taken for granted that both parents will be contributing to the cost of college. While the Court is obligated to take into account the financial resources of the parents as well as their ability to pay, it has been my experience that short of complete and total destitution, a Court will almost always find an ability to pay. I have seen this happen in cases where the party from whom contribution was sought was earning in the $30,000.00 per year range. I have even seen this happen in a case where the non-custodial parent's only source of income was Social Security Disability payments. I don't believe that my experiences in this area are necessarily unique, but rather I think they are reflective of what is happening in Family Courts throughout this State.

While I can appreciate a Court's unwillingness to casually or routinely accept an "I don't have the money" argument, I believe the pendulum has swung too far in the other direction. Not only will a Court almost always find an ability to pay, but in my experience, the Court will almost always defer to the child's choice of college, regardless of potentially less expensive schools which might be available.

As a New Jersey divorce lawyer, it is my opinion that the Courts should be undertaking a more thorough, realistic evaluation of the finances of the litigants who appear before it. This is especially true at present, given the economic downturn as well as the ever-increasing cost of college. A parent earning $30,000 or less in the State of New Jersey probably does not have the ability to contribute to college costs. I would like to see a "bright line" income level set, below which there would be a presumption that the parent does not have the financial ability to contribute.