Family Law

The stress and considerations an intact family experiences when making decisions with a child, or for a child, over his or her education loom large even in the best of circumstances. The added element of divorce can exasperate these tensions and diminish a milestone event such as a child's admission into a preparatory school or matriculation into college. There is perhaps some limited solace in the fact that when strife between divorced or divorcing parents escalates into a full blown contest over matters attendant to a child's education, New Jersey's statutory and case law offer direction geared toward resolving the dispute. The purpose of this article is to highlight some of the main factors and issues relevant to judicial determinations over who pays for a child's education, at what institution, and at what cost.

These issues have engendered debate of constitutional proportion. In one case, a parent argued that compelling him to pay for his children's education at a religious private school infringed upon the parent's religious freedom. As an agnostic, the parent professed a disinclination to fund his children's education at a religious school.¹ Although the parent ultimately was ordered to contribute to the cost, the dramatic scale of the parent's arguments against contribution underscores what a heated issue a child's education can become. Add to the controversy the considerable costs of private education at any level and the escalating costs of higher education at every level, and the cause for debate becomes clear.

In general, there are two scenarios under which disputes over a child's education come to light in the context of divorce: As part of the divorce proceeding and/or as an application made after the divorce. During the divorce process, issues pertaining to a child's education can be negotiated and incorporated into a settlement agreement, which typically addresses issues of custody, parenting time, financial support, and property distribution (i.e., "equitable" distribution as it is called in New Jersey). If the parties are unable to reach an agreement regarding a child's education, then a court may have to resolve these issues, and/or any other disputed issues, for the parties by conducting a trial.

It is also commonplace for educational issues to arise after the parties divorce. In this scenario, the party seeking to compel contribution from the other party can file an application with the court (typically in the form of a post-judgment motion) for the applicable relief. Although it may be a surprising and disheartening concept to think of divorce litigation continuing even after a judgment of divorce has been entered, often issues relevant to a child's education, whether private primary or secondary school contribution, or college contribution, have a lifespan years past the entry of the divorce judgment. For example, when a child is not enrolled in school at the time of divorce, it can be difficult for the parties to resolve all issues relevant to the child's education at the time a settlement agreement is reached. In such a scenario, the child's educational needs may be prospective to the point of being unforeseeable. Similarly, the remoteness of an event (e.g., an infant's future enrollment in college) can impede a judge in adjudicating a definitive resolution of the issue at the time of divorce. Often in these cases, lawyers drafting agreements (or judges entering judgments) may rely upon elastic language to resolve the issue in the interim until the child's educational needs become more clear.

It is not uncommon for a settlement agreement to state that each parent will share college and/or other education costs based on his and her ability to pay at the time the cost is incurred. As to the selection of the educational institution, an agreement can leave resolution of that issue open-ended as well. On the issue of selection, an agreement may provide merely that the parties will consult and consent with one another as to the future selection of a school. In the event that ability to pay, selection, or any other issue relevant to a child's education are contested in the future, then a party can bring a post-judgment motion to open these issues to the court for resolution.

If the issues brought before the court in a post-judgment motion cannot be decided based on the court's review of the motion paperwork and documentation submitted in support thereof, then the court may require a limited trial, or plenary hearing. The purpose of the hearing would be to allow the judge to hear testimony and weigh evidence offered by both sides in support of his and her positions.

In contested matters involving a child's educational needs, courts consider various elements of a case in accordance with the relevant law found both in New Jersey's statutes and court opinions. In fact, a child's education is a factor in awards not only of child support but also of custody, alimony and equitable distribution. In awarding child support, courts consider, the "[n]eed and capacity of the child for education, including higher education."² Custody findings must include a determination of the "quality and continuity of the child's education."³ In awarding alimony, courts must consider both the financial and non-financial contributions a spouse made to the marriage including contributions toward the "education of the children."⁴ In awarding equitable distribution, courts must contemplate the "need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or education costs for a spouse or children."⁵ Therefore, a child's educational needs, "including" but not limited to "higher education," and the implications of such needs in all areas of divorce, are recognized by statute.

Court opinions develop further this general recognition. There are more cases addressing a parent's obligation regarding college contribution than private primary and secondary education in New Jersey. Nonetheless, at least one trial court decision, which was later affirmed on appeal, does offer some direction regarding a parent's obligation to contribute financially to a private grammar school.⁶ The court found that a parent's obligation to contribute financially to a child's private school education could arise upon a weighing of the following fourteen circumstances analyzed on a case-by-case basis in tandem with the child's best interests:

1. Ability of non-custodial parent to pay.
2. Past attendance of one or both parents at that or similar private school.
3. Whether children were attending private school pre or post divorce.
4. Prior agreement of non-custodial parent to pay, to send children to private school.
5. Religious background of the parties, their children.
6. Are special educational, psychological and/or special needs of child met, advanced by such private schooling?
7. Generally, is it in the child's best interest to attend, or continue to attend, private school (is the academic environment in child's best interest?).
8. Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.
9. Were actions of residential custodial parent to enroll the children reasonable under the circumstances?
10. Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?
11. Ability of child to respond, prosper from his educational experience; will such schooling be of particular benefit to him or her?
12. Lack of present, past non-custodial parent involvement in children's education.
13. Degree of involvement of custodial parent in children's education (is it extensive?).
14. Is residential custodial parent's views, desires consistent with past practices regarding private school education?⁷

Therefore, in determining whether it is appropriate to obligate a parent to pay the cost of private primary and/or secondary education, courts will assess each case according to these factors. Similar factors determine the existence and extent of a parent's obligations to contribute to the post-secondary education of a child. The factors the court will consider include:

1. whether the parent, if still living with the child, 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 owned 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 advice and guidance;

    and

     

12. the relationship of the education requested to any prior training and to the overall long-range goals of the child.⁸

As with private school contribution for primary and secondary school, courts will assess a parent's obligation to contribute to the cost of a child's higher education in the context of the appropriate factors including the child's best interests. Notably, in recent years, efforts to limit a parent's court-ordered college contribution to that of state school tuition emerge in proposed legislation. However, to date such legislation has not been enacted and courts have rejected the state school tuition formula when adjudicating contribution.⁹ Rather than limit by rote a parent's obligation to that of a state school tuition, courts have adhered to weighing the factors enumerated above so that contribution will not "be governed by an artificial bottom line."¹⁰

There are two additional issues to consider in the context of a parent's financial contribution to a child's higher education. The first arises in a scenario where a parent has a child support obligation, to which the other parent seeks to add a level of college contribution, or private school contribution. Upon establishing a parent's obligation to contribute to private or higher education, whether by agreement or by court order, it is possible that the parent's child support obligation for that child will be modified downward. The reason for this lies in the fact that the Child Support Guidelines,¹¹ the statutory scheme by which child support is calculated for parents with a combined net annual income up to $150,800, do not include private school and college contribution in the child support equation.¹² Therefore, the level of contribution may offset the child support obligation to give the obligated parent a "credit" for his or her contributions to the child's education. Moreover, the Child Support Guidelines specify that they do not apply to support awards for children over eighteen years old.¹³ Accordingly, in cases involving contribution to a child's education, it is foreseeable that the parent's support obligation for that child may be commensurately revisited.

The second issue of note is that a parent's contribution to a child's education may not stop at college. In fact, the seminal case that established New Jersey's college contribution criteria involved the obligation to contribute a child's law school education.¹⁴ Therefore, the education of child can become an issue with an extensive duration.

As with most issues in family law, the ideal scenario is one where both parties are able to reach an agreement. This is particularly true in cases involving a child's education needs as the child's parents are certainly more able to arrive at a resolution tailored to their child's interests, as well as the child's personality and preferences, than a court. However, in the event that an agreement cannot be reached, there is a legal framework available to resolve the issues in dispute.

*************************** 1. Hoefers v. Jones, 288 N.J. Super. 590, 595-7, 672 A. 2d 1299, 1302-3 (Ch. Div. 1994); aff'd, 288 N.J. Super. 478, 672 A. 2d 1177 (App. Div. 1996).

2. N.J.S.A. 2A:34-23(a)(5)

3. N.J.S.A. 9:2-4

4. N.J.S.A. 2A:34-23(b)(9)

5. N.J.S.A. 2A:34-23.1(n)

6. See, Hoefers v. Jones, 288 N.J. Super. 590, 672 A.2d 1299 (Ch. Div. 1994); aff'd, 288 N.J. Super. 478, 672 A.2d 1177 (App. Div. 1996).

7. Hoefers, at 288 N.J. Super. at 611-12, 672 A. 2d at 1310.

8. Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A. 2d 1031, 1038-9 (1982).

9. See, Finger v. Zenn, 335, N.J. Super. 438, 762 A. 2d 702 (App. Div. 2000).

10. Finger, 335 N.J. Super. at 445, 762 A. 2d at 706.

11. "Considerations in the Use of Child Support Guidelines," App. IX-A, N.J. Court Rules (GANN 2002).

12. Id. at para. 20(a), p. 2280.

13. Id. at para. 18, p. 2279.

14. See, Newburgh v. Arrigo, 88 N.J. 529, 444 A.2d 1031 (1982).