Post-Divorce Contributions to Post-Graduate Education Costs: Are You On the Hook?

Contribution to the higher education costs of children is one of the most frequently litigated issues between divorced spouses in post-judgment matrimonial matters.  With skyrocketing tuition price tags, the stakes can be high (and even financially ruining) when litigating these issues if you are faced with unexpected education costs.  A recent unpublished Appellate Division decision, Lichter v. Lichter, highlights that the fight is not necessarily over when your child receives a college degree.  Can you be compelled to contribute to the post-graduate education expenses of your child? Maybe.

In Lichter, the parties were divorced in 1993 when their children were four and one, respectively.  Following the older child’s graduation from college in 2015, the father sought an order determining the daughter was emancipated, terminating child support for the daughter and reducing child support for the parties’ younger son.  At the time of the application, the daughter was 23 years old, working part-time and supporting herself.  The mother moved to deny the father’s application, in part, on the basis that their daughter would be attending Monmouth  University as a full-time, post-graduate student in the fall and would not be able to earn an income during that time.

The parties’ Marital Settlement Agreement (MSA) provided that they agreed to contribute to college expenses, but that the precise amount of each party’s share would “abide the event.”  The MSA did not address post-graduate education expenses.

The trial court granted the father’s motion, emancipating the daughter and terminating child support as to her. The mother filed an untimely motion for reconsideration, which was denied. Though the Lichter decision reviews the trial court’s decision on the motion for reconsideration as opposed to the underlying motion for emancipation, the decision provides a substantive overview of the relevant case law governing emancipation and its relation to the obligation to contribute to higher education costs.

The Lichter court acknowledged that emancipation is a fact-sensitive inquiry.  Though there is a rebuttable presumption that a child is emancipated at 18,  the test for emancipation is whether the fundamental dependent relationship between parent and child has concluded such that the child has moved beyond the sphere of influence of the parent.  In Lichter, the trial court found that the mother had not overcome the rebuttable presumption that the daughter had moved beyond the sphere of influence sufficient to declare her unemancipated at 23.  However, the Lichter court acknowledged that in some circumstances, there is a parental duty to assure children of a college, and even postgraduate, education.

Importantly, the Lichter decision reviewed a 2015 order in light of the specific parties’ MSA.  Statutory amendments to the laws governing termination of child support (which came into effect earlier this year) are relevant to the analysis going forward.  N.J.S.A. 2A:17-56.67 provides that the obligation to pay child support shall terminate by operation of law without a court order upon a child’s reaching of the age of 19, unless the custodial parent makes an application to extend child support beyond 19.  There are several grounds upon which the custodial parent can make such an application, including, the child’s full-time enrollment in a post-secondary education program.  In any event, child support terminates by operation of law upon the child’s reaching of the age of 23.

The amendments to the law strive to provide a more formulaic approach to termination of child support.  However, as pointed out in Lichter, an order emancipating a child does not necessarily bar a subsequent order requiring parental contribution to higher education.  Moreover, a parent may be required to contribute to a child’s higher education expenses even if the monthly child support obligation has ended.  It remains to be seen how courts will reconcile the statutory amendments with the existing case law regarding emancipation and higher education costs.

The interplay between an MSA and guiding law is also important. In Lichter, the parties had not addressed graduate school costs in their MSA.  At the time of divorce, parties can negotiate terms related to higher education costs, including post-graduate expenses, to leave less to interpretation when issues related to this kind of support come up as children of the marriage grow up and attend school.  The younger the children, the more difficult it can be to predict where they might attend school and what type of degrees they will be interested in pursuing.  However, acknowledging that these types of expenses may arise, and providing how they will be addressed in the MSA, promotes certainty in how to allocate these costs and reduces the likelihood of post-judgment litigation.