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Payment of College Costs - Should a non-custodial parent be required to pay for a public college or a private college?
My son wants to go to Harvard University…

However, I only earn $50,000 per year. I have advised my son to apply to Rutgers or to another public college located in New Jersey. Will I be required to pay for his tuition at the more expensive private college?

Every application to require a parent to contribute toward college costs is different, and each stands on its own merits. Every case is decided on a case-by-case basis. In most cases, the court will set up a plenary hearing, and order the parents to provide a CIS and disclose their financial information. In a situation like the one above, the court would only require the parent to contribute to a portion of the cost to attend Harvard.

The central issue as to whether a son or daughter will attend a public college or a private college can be extremely contentious.

The cost to attend a private college is often two or three times more expensive than attending a public college. Therefore, if there is an application to compel the non-custodial parent to pay for college costs, the financial exposure to a non-custodial parent is greater more if the child attends a private college. Therefore, it is critical for a non-custodial parent to be very involved in the child's decision to attend either a public or a private college. An important case is Nebel v. Nebel, 103 N.J. Super. 216 (App. Div. 1968). This case established the "Rutgers" rule. In Nebel, the court ordered a financially able father to contribute to the college education expenses for his son. However, the court also held that, while the custodial mother could designate a private college, the court would limit the college expense obligation of the father to his share of the far lesser costs of attending a public university, such as Rutgers, where a quality education could be obtained.

In summary, if a child is attending an expensive private college or university, then the non-custodial parent can always argue the legal reasoning as delineated in the Nebel case. The non-custodial parent can argue that their legal responsibility to contribute toward the cost of college should be limited to the cost to attend Rutgers, or of a similar public college or university located in New Jersey. In my experience if a non-custodial parent earns a very modest income, and if the CIS reveals that he is not "awash" in cash, then it is very likely that a court will "buy" a Nebel argument. However, if a non-custodial parent is living an opulent lifestyle, and if he has a fancy home and a nice car, then in all probability a court will not place much weight on a Nebel argument. In my experience if a non-custodial parent can afford to pay for a private expensive private college, then in the majority of the Newburgh/Arrigo cases the court will order that the non-custodial parent must pay for the expensive private college. The key issue in this type of scenario is what can the non-custodial parent afford? Obviously this question can be debated ad infinitum.

What are the important facts and holding(s) in the Nebel case?

In the Nebel case, the defendant husband sought a review of the court's decision, which ordered the defendant to contribute toward the college expense of the parties' 18-year-old son in plaintiff wife's custody. This was basically the first college contribution case that was decided by the New Jersey judiciary. The is a fairly old case and it was decided in 1968. However, it is still good law today.

The plaintiff wife sought an order to require the defendant husband to pay for their 18-years-old son's college tuition. At the first hearing the court found that the defendant was financially able to contribute toward college expenses. The court further found that the defendant had a duty to provide his son with a college education if the defendant could afford it, and that higher education was an economic necessity. However, because the plaintiff failed to show that their son could not get a reasonably adequate education at a public university, the court only required the defendant to contribute the sum that would cover tuition at a public university instead of the higher tuition of the private college which the son attended.

The court then ordered the defendant husband to contribute to his son's college tuition. The court held that higher education was an economic necessity. Moreover, the court held that the defendant was financially able to contribute toward the tuition. However, because the plaintiff failed to show that their son required a private college education, the defendant was only ordered to contribute the amount that would cover tuition at a public university.

In the Nebel case, the final judgment of divorce was entered in this case on June 10, 1967. The judgment of divorce gave the plaintiff wife custody of the two minor children of the marriage, Jeffrey and Anne, then 18 and 11 years of age. A third child, John, was 21 and emancipated. At the time of the judgment of divorce Jeffrey was a high school senior in Pingry School, a private institution, and John was a college senior at Princeton University. Both boys graduated at the end of the then current school year. In September 1967 Jeffrey entered Lafayette College.

By her motion, the plaintiff sought an order requiring defendant to pay for Jeffrey's college tuition. In her supporting affidavit she alleged that at the time of the judgment of divorce the defendant had promised to contribute voluntarily a minimum of $1,000 a year, and more if his financial circumstances improved, toward Jeffrey's tuition and other college expenses and had assured her that it would not be necessary to provide for such expenses by court order.

The defendant filed an answering affidavit and he claimed that he would voluntarily contribute something toward the college expenses if he was "financially able to do so." The defendant opposed the motion, and he contended that his financial condition was very poor. The defendant did not question Jeffrey's scholastic aptitude. The defendant pressed his contention that he lacks financial ability to pay college expenses The court held that the defendant had the financial means to pay for the college expenses. The court noted that the defendant was a dentist with an established practice. His 1966 income tax return indicated that his net income for that year was approximately $11,500 after taxes. He recently purchased a $45,000 home, which he used for his residence and dental office. His economic potential and credit standing were great enough for him to obtain a purchase money mortgage in the amount of $31,500. The defendant lived alone in this home. In addition to this home the defendant had a $12,770.85 stockholder interest in a realty corporation. His list of accounts payable did contain a few substantial obligations. However, the court ruled that considering his income and potential, these obligations should not create a difficult burden for him.

The defendant raised a question as to the fairness of Jeffrey's going to a private college like Lafayette, and of this court's requiring defendant to pay the expenses thereof, when a state college (Rutgers) was available at a much more affordable price. The court noted that the cost of tuition, room and board at Lafayette was $2,880. Meanwhile, at Rutgers the cost of similar college education was only about half that much. At oral argument, the court asked the plaintiff why Jeffrey had not gone to Rutgers, and her only explanation was that she and defendant had gone to so-called Ivy League schools and therefore she wanted Jeffrey to have the benefit of an education at a more prestigious institution than Rutgers.

The court ruled that the defendant's position was reasonable. The court noted that his income and assets, though adequate, were modest by current standards. The court further took judicial notice of the fact that a high quality education is available at Rutgers. Finally, the judge noted that there was nothing in the record to indicate that Jeffrey could not gain admission there or that the courses available there were not adequate for his needs.

In summary, the court held that it was quite fair, under the circumstances, to limit the defendant's college expense obligation to the approximate cost of an education at Rutgers. Therefore, the court held that Jeffrey could obtain at Rutgers a reasonably adequate education in his chosen field. Therefore, the defendant was only required to contribute no more than $1,500 a year toward the expense of Jeffrey's college education.

My daughter has been accepted to Duke University…

However, my thrifty ex-husband contends that he can only afford to pay for her to attend Rutgers. Is there any case law that can be cited to compel my ex-husband to pay for her to attend the more expensive private college?

Another very important case is Finger v. Zenn, 335 N.J. Super. 438 N.J. Super. 438 (App. Div. 2000). Here, the central issue in this appeal was whether a divorced spouse can be compelled to contribute to the college education of a child at a private college.

Here, the defendant Robert Zenn appealed from a post-judgment order that was issued from the family court judge. The Honorable Judge Zampino of the Essex County Family Court ruled that the defendant father had to pay for fifty percent of the cost of the parties' children for a four-year college education for each child.

During the time of the litigation, the son David was attending George Washington University, and the son Jacob was a high school senior. Both children had an aptitude for college. The plaintiff wife attended the University of Pennsylvania, and the defendant husband attended Lafayette College and the New York University Dental School.

In 1998 David applied to various schools included George Washington University, his first choice, and Penn State. The defendant concedes that he discussed different colleges with his son and in fact encouraged him to apply to Lehigh University.

The parties could not reach an agreement as to the payment of David's college education. The plaintiff's attorney proposed an equal division of college expenses. Meanwhile, the defendant's attorney responded that the defendant only agreed to pay a sum equivalent to fifty percent of the expenses for a full-time student at Rutgers University, which at the time was about $12,000 per year.

David was rejected at Penn State. He then modified his application at George Washington for early acceptance. When he was accepted, he withdrew his other applications. The annual expense of a student at George Washington at that time was about $31,000 per year.

Thereafter, the plaintiff filed a motion to compel the defendant to pay fifty percent of college costs for both children, requiring the defendant to pay fifty percent of the costs of sending him to George Washington University. The defendant then filed a cross-motion that sought to limit his contribution to David's college costs to fifty percent of the costs at Rutgers.

The family court held that the defendant was required to pay for fifty percent of the costs for tuition at George Washington University. The family court made the following findings:

The court believes that the parties would have, if intact as a family, would contribute toward the costs of the requested education and that the educational background and the goal of both the parents for the child's education both seem to be compatible and the real issue is the cost contribution raised by the child's father. The court believes that the fairest allocation of that costs should be equal between the parties and that the financial resources of both parties are able to meet this allocation. The child has certainly shown the aptitude for the required education and it is hopeful that the child marks in coming years will show such a commitment. The availability of financial aid should be explored for this year and the coming years, so that the equal divisions will be met after the receipt of any grands. The court does not intend for the child to incur any loans for which the child would be responsible in the future, a least for the first years of the child's schooling. This may be an issue revisited in the future when both children are in college.

This court finds that the relationship of the child to the parties is a positive one and except for the monetary disagreement, should not be considered as a negative toward the payment of the education requested.

Thereafter, the defendant father appealed to the Appellate Division. On appeal the case was upheld. The Appellate Division focused on the ability of the defendant husband to pay for his son's private college tuition. The court noted that the defendant was a practicing dentist and that his tax return set forth an income of about $200,000. Moreover, the defendant owed a home in Short Hills that had a value of about $700,000. The court also noted that he had a close relationship with his sons.

The Appellate Division did not overrule the Nebel case. The Appellate Division merely rejected the defendant's argument that he cannot be compelled to contribute an amount in excess of the costs of a New Jersey resident student at Rutgers or some equivalent New Jersey state college. The Appellate Division held that the Nebel case was factually distinguishable from this case. The Appellate Division further held that the defendant's income and assets are more than adequate for a fifty percent contribution at George Washington University. The Appellate Division focused on the defendant's ability to pay instead of strictly construing the Nebel case.

I am very confused after reading the above FAQs. Which case is more relevant; the Nebel case or the Finger v. Zenn case?

One of the most confusing aspects of family law is that there is no clear cut answer to any question. Many web surfers after reading the above faqs are confused at the diverging legal viewpoints of both the Nebel case and the Finger v. Zenn case. Many web surfers are eager to ascertain which case is better and more important. The answer to this question is that both cases are of equal importance. There is no magic case in a divorce case or a family court motion that we will your case. Citing case law is simply a tool by a lawyer or a litigant to be used to convince a court to rule in your favor.

Both cases have their strengths and weaknesses. The Nebel case is an old case and it was decided in 1968. Moreover, the Nebel case was only decided by a judge in the Chancery Division, Family Part. The Nebel case was never appealed to the Appellate Division. Meanwhile, Finger v. Zenn case is a more recent case and it was decided in 2000, and it was decided by an Appellate Division panel. The Appellate Division is a higher court than the Chancery Division, Family Part. Therefore, it could be argued that the Finger v. Zenn case has more weight because it was decided by a higher court.

It must be emphasized that the Nebel case is still valid law even though it was decided in 1968 is still good case law. Many family court judges place great weight on the Nebel holding. Meanwhile, some judges may not give this holding its due weight. It is important to note that about one half of the judges in New Jersey attended Rutgers either undergraduate or at the Rutgers Law School. Therefore, a large percentage of the New Jersey judiciary are inclined to appreciate the value of a Rutgers education. It must be emphasized that the Finger v. Zenn case did not overturn the Nebel case. Instead, the court in Finger v. Zenn simply held the Nebel case was factually distinguishable from their case.

I have advised my ex-wife that I can only afford to pay for our son to attend Rutgers…

However, she is very stubborn and our son is still applying to many expensive Ivy League schools. What can I do to protect myself?

It is very important to document any communications that you have with your ex-spouse and son about his choice of college that he may choose to attend. If you communicate with your wife via e-mails, then these e-mails must be saved and printed out for your records. If you communicate via the mail, then it would be wise to send any letters via certified mails. These correspondences should document that you object to your son attending a college that you can't afford. In these correspondences you should explain your financial limitations, advise your ex-spouse of your current income, and you should also give him/her a snapshot of your current financial situation.

Moreover, in this correspondence you should advise your ex-spouse that you would gladly offer your financial support to pay for a public college such as Rutgers University, Montclair State University, NJIT, The College of New Jersey. Moreover, your letter should further advise your ex-spouse that you would like to set up some visits of these state colleges with your son. Finally, your correspondence should refer to the Nebel case, and you should give your ex-spouse a brief overview of this most important case.

It is of the utmost importance to document your communications with your ex-spouse over your son's choice of college. If there is ever a plenary Newburgh/Arrigo hearing, then any documented conversations that object to your son attending an expensive Ivy League University can have great weight and evidential value.

Could you please provide me with a sample letter that I can send to my ex-spouse to protect my finances if our son still insists on attending Harvard University?

Dear Patty Plaintiff:

Please be advised that I strenuously object to our son applying to Harvard University. As I have repeatedly explained to you, I am a person of limited income and of financial means. I now work as a union plumber and my yearly income is approximately $55,000 per year. I can't afford to pay for a college that costs approximately $50,000 per year. The amount of the tuition for Harvard University almost equals that amount of income that I earn for an entire year. Moreover, I am in severe financial disarray as well. I now have approximately $40,000 in credit card debt.

I strongly suggest that we explore sending our son to one of the many excellent public colleges that are located in the State of New Jersey. As you are aware, I have not even attended college. The extent of my education is finishing high school, and attending trade school for plumbing. If our son attends a public college then he will far be exceeding the amount of education that I have received.

Our son advises me that he wants to pursue a degree in electrical engineering. After researching the electrical engineering programs at both Rutgers University and at NJIT I have learned that they are both excellent and very prestigious institutions. I am certain that our son can receive a comparable education at these highly esteemed colleges.

Please contact me so that we can set up a plan to fund our son's tuition and his related educational expenses at one of the many reputable New Jersey public colleges. Moreover, please contact me so that we can schedule some visits to these New Jersey colleges as well. Thank you for your anticipated cooperation in these matters.

Sincerely yours,

Danny Defendant


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