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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.

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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.

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The New Jersey Appellate Division, in an unpublished opinion decided on June 9, 2010 in the case of Fischer v. Fischer (A-0345-09T2), reaffirmed the general rule that unless a party to a post-judgment custody case can demonstrate a prima facie case of changed circumstances, then the Court need not hold a plenary hearing. The Court also noted that in custody matters, the decisions of family court judges will be given special deference given their special expertise in this area of law.

As a practical matter, the need for a plenary hearing in a particular custody case will often turn on the unique facts of that case, as well as the judge hearing it. What constitutes a “change of circumstances” is a subjective matter that might be decided differently from judge to judge. For example, in the reported case of Mackowski v. Mackowski, 317 N.J.Super 8 (App. Div 1998), the Appellate Division reversed the trial judge because a plenary hearing was not held in a case where, from the point of view of the Appellate Division, there did seem to be “genuine and substantial” issues regarding custody.

There are no shortage of arguments a party may try to muster to demonstrate a change in circumstances. A party may seek to argue that a child who once did well in school is now doing poorly, or that the child is now having behavioral problems that did not exist before. Sometimes, the relocation of the custodial parent, even within the State of New Jersey, might be deemed a change significant enough to warrant a hearing on custody. A litigant might attempt to argue that an ex-spouse’s remarriage has had a negative effect on the children. I have seen it persuasively and compellingly argued that the custodial parent is simply not up to the task of caring for the children. Courts are most willing to entertain plenary hearings when the best interests of the child are in question, or, put another way, where it seems that the custodial parent is not adequately protecting the child’s welfare.

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