Articles Posted in College Costs

In the course of a New Jersey divorce, the parties often enter into agreements that discuss future splits of costs and expenditures, sometimes called a Property Settlement Agreement (PSA) or Matrimonial Settlement Agreement (MSA). For example, parties often will include provisions in these agreements on who will pay for future college costs for their children, or for extracurricular activities. Sometimes, however, circumstances change after these initial agreements are made, and one party may seek to reduce his or her originally agreed-upon financial obligations. This often is much easier said than done—and must be based on a meritorious claim.

In a recent Superior Court of New Jersey opinion, the court considered a divorced couple’s obligations toward their sons’ college costs. The parties had four sons during their twenty-year marriage. When they divorced, they entered into a PSA, which included a provision that would divide the costs of college and secondary education evenly between the two parties.

The plaintiff filed a motion to reduce his child support obligation, which failed when the trial court required the plaintiff to still contribute 50 percent of college costs for two of his sons. The plaintiff appealed, arguing that he should not be obligated to pay for his two sons’ college expenses because he did not agree to their choice of schools.

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.

Contact Information