How to Avoid the Payment of College Costs
(provided by Theodore Sliwinski, Esq.)
1. What is the leading case that will assist me to avoid paying for my child's college costs?
The issue of the payment of college costs has exploded in the world of family law. In a perfect world, both parents should be thrilled to pay for the costs of college for their children. The parents should be elated that their child has not turned into a juvenile delinquent. However, the bitterness of a divorce often turns the children against the non-custodial parent. Moreover, the harsh economic realities of the life often make paying for college for the non-custodial parent to be a monstrous task. In many cases the non-custodial parent often remarries and then starts of new family. The second wife often is not eager thrilled at all to assist paying for the college expenses for a child born of a prior marriage. The second wife often believes that these funds should be used to pay for the new family.
Another reality of life is that many parents hate paying for child support. Many misinformed parents believe that their child support will automatically end once the child turns 18 years of age and graduates from high school. Many parents are astonished when they realize that in most cases they still have to continue paying for child support even after their child goes to college. Moreover, many parents absolutely go into a state shock when they realize that in addition to paying for child support, they may also have to pay for a significant portion of their child's college tuition and other related costs as well. New Jersey has some of the most liberal child support laws in the United States. Moreover, the laws of college contribution toward the cost of college are also the most liberal in the United States. I constantly advise my clients that I did not create these laws, and that these laws must be dealt with.
After this hysteria wears off many parents scramble to find ways to terminate their child support, and to avoid paying for their child's college education costs. The purpose of this article is to provide some legal avenues that may enable a non-custodial parent to avoid paying for their child's college costs. At the very least, this article can assist a non-custodial parent to present some meritorious arguments to the court in support of their position to avoid paying for their child's college education.
I want to make it clear that I support the proposition that all parents should assist their children to pay for their college costs. If my parents did not provide me with the financial assistance to attend Duke University then I could not have afforded to go there. If my parents did not provide me with the financial assistance to attend law school, then I would not be a lawyer today. The bottom line is that the current generation of a family has to make financial sacrifices to enable the next generation to prosper. I always advise my clients to assist their children to pay for the cost of college. I also advise my clients to assist their children to pay for any costs to attend law school, medical school, business school, or any other relevant and useful graduate school program. I try to explain to all of my clients that you only have a few children, and that you have to help them get started in this "dog eat dog world."
Most of my clients listen to my wise advice. However, there is a still sizable amount of my clients who want to avoid paying for
their child's college costs no matter what the circumstances are. In the year of 2006, the New Jersey Supreme Court issued a
landmark case that gives hopes to many parents who don't want to pay for their child's college education. The name of this case is Gac v. Gac, 186 N.J. 535 (2006). This case provides non-custodial parents a strong argument to avoid paying for their child's college expenses.
In the Gac case, the New Jersey Supreme Court held that in certain circumstances a non-custodial parent does not have contribute toward the payment of their child's college costs. The Gac court discussed several factors that ultimately led them to render this landmark decision. These major factors are: a) There must be a breakdown in the parent/child relationship; b) The child must alienate the non-custodial parent; c) The non-custodial parent must not be consulted as to what college the child wanted to attend. If these factors are present in a Newburgh/Arrigo type of case, then the New Jersey Supreme Court has held the non-custodial parent does not have to contribute to the college education expenses for the child.
2. Could you please summarize the facts and the legal holding in the landmark Gac case?
The main issue in the Gac case was whether a non-custodial parent had a legal duty to contribute toward the college educational expenses of his child. The non-custodial parent was never consulted with regard to the child's choice of college. Moreover, the child terminated her relationship with her father. The former wife did not make an application for contribution until after the child finished her college education.
The case was eventually appealed all the way up to the New Jersey Supreme Court. The prior status of the law was that a non-custodial parent had a duty to contribute to the college costs of his or her child even if the child did not consult with the non-custodial parent. In the Gac case the New Jersey Supreme Court held that under the circumstances present, and under a balancing of the Newburgh/Arrigo factors for determining what amount a parent must contribute to college expenses, the non-custodial parent should not have to contribute to the child's college loans.
Here, the parties were divorced in 1987, and the defendant was granted visitation with the two children. The defendant attempted to establish a relationship with the children through telephone calls and letters. However, the children alienated their father and they did not respond. Eventually, the parties' daughter elected to attend college. The daughter did not consult with her father before she chose to attend Quinnipiac College. Quinnipiac College is an expensive private school, and it costs considerably more than Rutgers or other New Jersey public colleges or universities.
After the daughter graduated, the defendant filed a motion to terminate his child support obligation. The plaintiff then cross-moved for contribution toward their daughter's college expenses. The New Jersey Supreme Court denied the plaintiff's request to compel the defendant to contribute to his daughter's college education.
The Gac court held that the facts set forth in the seminal case of Newburgh v. Arrigo, 88 N.J. 529 (1982), clearly contemplates that the parent or child that seeks contribution toward the expenses of college will make that application before the educational expenses are incurred.
3. What are the important points of the landmark Gac case?
The Gac case gives hope to many thousands of non-custodial parents who want to avoid paying for the college expenses for their children. I don't support this proposition. However, the reality of life is that many non-custodial parents don't want to offer financial assistance to their children to attend college.
The Gac case held that a non-custodial parent must be consulted regarding the choice of the child's college that he or she wants to attend. The Gac court also held that the lack of a relationship between the father and his daughter did not justify the daughter's and the mother's failure to consult the father regarding college education.
The Gac case essentially reversed the case of Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996). In the Moss v. Nedas case
the Appellate Division still indicated that even if a child has severed all ties with the non-custodial parent, he or she could still receive contribution toward college expenses from that parent.
The Gac case basically has established the doctrine that if a child or a custodial parent wants to receive financial contribution from the non-custodial parent for the payment of college costs, then the non-custodial parent must be consulted. The Gac case further held that even if the parties' daughter had legitimate reasons for terminating her relationship with her father, neither the mother or the daughter was permitted to incur the college expenses before they consulted with the father. It is important to emphasize that the Gac court did indicate that if the plaintiff had sought contribution at an earlier date, then she may have succeeded in her claims for contribution.
The Gac case has established the "failure to consult" doctrine in Newburgh/Arrigo cases. In any college contribution case, if the facts are similar to the Gac scenario, then a non-custodial parent can make an argument that he was never consulted as to the choice of college that the child chose to attend. The family court litigant can also argue that since he was not consulted, then under the legal principles of the Gac case, he should not be legally required to contribute toward the costs of college. Another major point of the Gac case is if there is a breakdown of the relationship between the child and the non-custodial parent, then a family court should be hesitant to compel a non-custodial parent to contribute toward the costs of college.
It will be very interesting to see how far the family courts will extend the rationale and legal reasoning of the Gac case. Based upon my observations, most family courts will almost always compel a non-custodial parent to contribute toward the cost of college. Only in the most extreme cases will a court decide that a non-custodial parent has no legal obligation to contribute toward the payment of their child's college costs. If a non-custodial parent wants to avoid the payment of college costs, then there has to be a complete breakdown of the relationship between that parent and the child.
I strongly suggest that all teenagers and custodial parents should establish a paper trail that documents that they have consulted with the non-custodial parent as to the choice of the college or university that the child wants to attend. Print out copies of any e-mails that were sent to the non-custodial parents. Send any letters to the non-custodial parents that concern the choice of college by certified mail. The cost to attend college often ranges from $100,000 to $250,000 for all four years. If a child or a non-custodial parent has emails, letters, and certified mail receipts that document that the non-custodial parent has been consulted as to the choice of college, then these proofs can be used to thwart any "failure to consult" arguments made by a non-custodial parent. In summary, any communications with the non-custodial parent about the child's choice of college should be well documented. The non-custodial parent should send any letters to the non-custodial parent about their child's choice of college by certified mail. If the divorced couple communicate about the child's choice of college via e-mail, then the e-mails should be printed out and saved. These types of proofs can effectively be used to combat any type of Gac arguments made by the non-custodial parent.
4. Are there any other cases that are similar to the seminal Gac case?
Yes. New caselaw is now being reported that is clarifying and expounding upon the seminal Gac holding. In the recent case of Dahms v. DeSanto, New Jersey App. Div., January 9, 2007, the Appellate Division addressed another family law case that was very similar to the Gac holding. Here, the mother was entitled to a plenary hearing and a complete Newburgh/Arrigo analysis from the New Jersey family court judge. Thus, the order that directed her to pay a proportionate share of her estranged daughter's college tuition was reversed. The case was then remanded for further proceedings. The term remanded means that the Appellate Division sends the case back down to the family court for a new hearing.
In the Dahms v. DeSanto case, the Appellate Division was very concerned with the family court's lack of legal analysis of the case. The Appellate Division held that the family court judge failed to consider the following factors; a) the mother's limited financial resources; b) the impact her estrangement from her daughter had on the father's decision to exclude the mother from any meaningful discussion about the daughter's education prospects; c) the root factors that led to the breakdown of the relationship, and any exacerbation by the mother's post-separation conduct; d) and the lack of evidence showing the parties' agreement to pay for the daughter's college education.
5. What if my divorce judgment does not mention that I have an obligation to pay for my child's college education?
Many people simply get divorced and they omit many important provisions in their property settlement agreement or in their judgment of divorce. The divorce centers are relatively inexpensive to use. However, a person may spend thousands of dollars to try to correct mistakes that a divorce center may have made. It is imperative that a provision that spells out who should pay for college is incorporated into any divorce judgment. Nonetheless, even if this provision is not put into the divorce judgment, in the majority of cases a court will still require both parents to contribute to the child's college costs. The court will set the case down for a plenary hearing. These hearings are commonly referred to as Newburgh/Arrigo hearings. The parents will be required to produce their pay stubs, W-2's, and tax returns, and will have to prepare a CIS. Thereafter, the court will try to fairly apportion each parent's proportionate share of contribution to college expenses that he or she must pay.
6. My daughter wants to go to Harvard; however, I only earn $50,000 per year. Will I be required to pay for her tuition?
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 Harvard costs.
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 of the son, but it 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 state 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 towards 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 in 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.
7. What if I can't afford to send my children to college?
In many Newburgh/Arrigo cases a parent has remarried, and he or she is now supporting two families. Many parents cry the blues when they are faced with applications to require them to pay for their child's college costs. I always try to console the client, advising that the money is going toward a good cause. Moreover, I always respond to the client with the following: "Don't you want your child to be successful?" Most clients agree with my logic and they see my point!
Nonetheless, some parents are still very cheap, and they refuse to be agreeable in paying for their child's college. If a parent is financially challenged, then they can apply to the court for a hearing that is commonly known as a Newburgh/Arrigo hearing. The court will order the parties to prepare a CIS, and disclose their pay stubs, W-2's, and tax returns. Thereafter, a hearing will be held. The court will review the evidence and hear the testimony of the parents. Thereafter, the court will attempt to fairly apportion the costs of college.
There is a trend now emerging where some judges refer college contribution disputes to ESP, or an Early Settlement Panel. This is an excellent idea, and it should be used more often by our courts. At an ESP hearing, two very experienced matrimonial lawyers will try to assist the parties in reaching a settlement on college contribution issues. In most cases, the parties can reach an accord on the college contribution dispute at the ESP hearing and avoid spending additional thousands of dollars on legal fees. The costs to prepare for a Newburgh/Arrigo hearing can be substantial. Moreover, the money that is saved on legal fees can be used to pay for the college tuition that is in dispute.
8. Are there situations where the contribution for college is not warranted?
There are certain situations in which a contribution to college is arguably not warranted. The most obvious situation is when a child is alienated from a parent and refuses all contact despite the parent's efforts to maintain a relationship. Even though there is no relationship, the child still requests that parent be held responsible for the payment of college. A very perplexing question then arises; Should the child who unreasonably refuses to have a relationship with a parent, and who fails to include that parent in the college selection process, be able to turn around and demand a contribution to college? The answer to this dilemma is determined on a case-by-case basis. The Arrigo v Newburgh case requires the family court to consider the "child's relationship to the paying parent, including mutual affection and shared goals, as well as responsiveness to parental advice and guidance." Id. at 545.
9. Will a parent be required to pay for child support and also contribute to the child's college costs?
The answer to this question is "maybe." The courts treat every case on an individual basis. The court will once again hold a plenary hearing that is often called a Newburgh/Arrigo hearing. If a parent is "rolling in the dough," then in most cases a court will require that a parent continue to pay for child support and also contribute to the costs of college. However, if a parent has additional children from a new marriage, and if he or she is financially strapped, then the court will in most cases only require the parent to either continue to pay for child support or contribute to college, not for both. The courts try to be fair with everyone. Most family court judges do not want to make a parent go bankrupt. However, if a parent has the money, then he or she will pay for child support and will also be required to contribute a fair share toward college.
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Theodore Sliwinski, Esq. located at
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