In a recent unpublished decision, the court determined that the language written in the parties’ divorce settlement was enforceable. The parties had divorced in 2009. The parties had agreed to share college expenses “based on the guidelines percentage that are in effect at the time the child enters college.” In other words, the college expenses would be paid based on the parents’ respective share of their combined incomes. Over a decade later the child was in college and not surprisingly, one of the parents couldn’t afford to pay.
The landmark case for college contribution in New Jersey is Newburgh v. Arrigo, 88 N.J. 529 (1982). Under Newburgh, a court must consider: (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.
If there is no written agreement regard college the “Newburgh Factors” will be analyzed by the court. If there is a written agreement it will be strictly enforced. It will not matter that you cannot afford the payments at the time the child commences college. Matrimonial settlement agreements and Consent Orders are contracts, governed by basic contract principles.
It is critical to ensure that reach an agreement now, that you can live with in the future. Or, agree that you will decide the issue when it is ripe. If a child is 2 there is no need to make a hard and fast agreement regarding college. The court is not going to rewrite your agreement 16 years later and a lot can happen in those 16 years.
If a child is a Junior or Senior in High School, then it is appropriate to consider the issue right now. You can reasonably foresee what your financial situation is going to look like over the next 3-5 years. Additionally, by that time, the child will have a better idea of where she intends to go to college (if at all).
College contribution is a complicated issue. With the rising cost of tuition and the decreased ability by students to borrow the full amount of tuition, room, and board, parents are often called on to cover the difference. Contact the experienced attorneys at LaBletta & Waters today for a consultation on how to work with your ex to reach an agreement on college expenses, or obtain a court order.