“Both [the New Jersey Supreme] Court and the Legislature have confirmed a child’s need for higher education as an appropriate consideration in determining the parental obligation of support.” Kiken v. Kiken, 149 N.J. 441, 450 (1997).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A child’s need for higher education is an appropriate consideration in determining the parental obligation of support originally appeared on NJ Family Issues on December 19, 2011.

The child support payee has the burden to overcome the contention that going to graduate school full-time is an unnecessary luxury. Ross v. Ross, 167 N.J. Super. 441 (Ch. Div. 1979).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The child support payee has the burden to overcome the contention that going to graduate school full-time is an unnecessary luxury originally appeared on NJ Family Issues on December 15, 2011.

When considering whether a non-custodial parent can be required to contribute to a child’s private school education costs, the trial court should consider certain factors:

(1) Ability of non-custodial parent to pay.
(2) Past attendance of one or both parents at that or a 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 to 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 or to continue 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 this educational experience; will such schooling be of particular benefit to him or her?
(12) Lack of present, past non-custodial parental 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?

[Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996).]

The lack of an express obligation in a PSA to contribute to private school expenses does not prevent the court from considering a motion for private school contribution, and “[i]n the absence of specific language in the agreement, we will not infer any such limitation.” Finger v. Zenn, 335 N.J. Super. 438, 444 (App. Div. 2000), cert. denied, 167 N.J. 633 (2001).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The lack of an express obligation in a PSA to contribute to private school expenses does not prevent the court from considering a motion for private school contribution originally appeared on NJ Family Issues on November 29, 2011.

A child’s emancipation is “the conclusion of the fundamental dependent relationship between parent and child,” Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006), “by which a parent relinquishes the right to custody and is relieved of the duty to support a child.” Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). The determination of whether a child is emancipated is fact sensitive. Ibid. Generally, the question of emancipation hinges upon whether the children have moved “beyond the sphere of influence” of their parents and have the ability and responsibility to support themselves as adults. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

A child’s “[a]ttainment of age [eighteen] establishes prima facie, but not conclusive, proof of emancipation.” Newburgh, supra, 88 N.J. at 543. Parents are not ordinarily obligated to support their children after they have reached the age of majority. Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). A parent may, however, be required to continue to support a child over age eighteen enrolled in a full-time educational program. See Newburgh, supra, 88 N.J. at 543 (requiring the continuation of support because the “privilege of parenthood carries with it the duty to assure a necessary education for children”); Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972) (holding that the father had an obligation to support his son while he was a full-time college student).

The trial court’s ruling that a child is emancipated simply by virtue of her graduation from college is contrary to the Supreme Court’s view as expressed in Newburgh, supra, 88 N.J. at 544, that “[i]n appropriate circumstances, parental responsibility includes the duty to assure children of a college and even a postgraduate education . . . .” See also Ross v. Ross, 167 N.J. Super. 441, 446-47 (Ch. Div. 1979) (finding that the father was obligated to pay child support through his twenty-three year old daughter’s completion of law school).

In making the determination as to whether child support is required, the court should consider the following factors:

(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; 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.

[Newburgh, supra, 88 N.J. at 545.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A child is not emancipated simply by virtue of his or her graduation from college originally appeared on NJ Family Issues on November 15, 2011.

As the Supreme Court held in Newburgh, a claim for contribution toward a child’s college expenses depends on the court’s consideration of the following non-exhaustive list of factors:

In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (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.

[Newburgh, supra, 88 N.J. at 545.]

Those factors were codified in N.J.S.A. 2A:34-23(a). See Gac v. Gac, 186 N.J. 535, 543 (2006).

Regardless of his parents’ PSA agreement, so long as the son is unemancipated he has a right to financial support from his parents if he has a provable need that meets the Newburgh standards. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). The son may submit his own application to the court, either pro se or through counsel, if he has legally competent evidence to support it and wishes to apply in his own name. See Gac v. Gac, supra, 186 N.J. at 546-47 (A child may make an application for college support). Should the son submit such an application, however, he may be required to appear in court and testify in support of the application.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A child may make an application for college support originally appeared on NJ Family Issues on November 15, 2011.

In determining whether to require contribution for college expenses from a non-custodial parent, courts should look to the twelve “Newburgh factors.”[5] Gac v. Gac, 186 N.J. 535, 543 (2006). The court should consider “all relevant factors,” including, but not limited to:

(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 higher 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.

[Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).]

In Gac, the Court noted that “the factors set forth in Newburgh . . . contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred.” 186 N.J. at 546 (emphasis added). As such, “[t]he failure to do so will weigh heavily against the grant of a future application.” Id. at 547. In Gac, as here, the father paid child support throughout college. The mother did not pursue contribution from the father until after their daughter’s graduation, in response to his request to terminate his child support obligation. Id. at 539. The Court concluded that “those facts are significant and tip the scale in favor of denial of plaintiff’s request for contribution.” Id. at 547.

In Gotlib v. Gotlib, the court applied the Gac holding to facts similar to those presented here. 399 N.J. Super. 295 (App. Div. 2008). The court concluded that, when the motion is brought after the expenses are incurred, splitting college expenses in half between the plaintiff and the defendant without addressing the Newburgh factors “is not sustainable.” Id. at 310. In Gotlib, the mother brought a motion seeking contribution from the father for college expenses “after these expenses had been incurred, thereby excluding him from the decision making process . . . .” Ibid.

As Gac and Gotlib make very clear, the lateness of the application for contribution for college expenses should weigh heavily against the moving party. See Gac, supra, 186 N.J. at 547; Gotlib, supra, 399 N.J. Super. at 310. A plenary hearing is necessary to resolve the conflicting facts set forth by the parties that are relevant to the Newburgh factors, including the reasons for the estrangement between the father and daughter. See Gac, supra, 186 N.J. at 546; see also Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996) (finding the trial court did not abuse its discretion when concluding that the father should not be required to share college expenses because of his limited financial resources and the absence of any meaningful relationship between father and daughter).

A plenary hearing is also necessary in light of the parties’ inability to agree on the meaning of terms in a written PSA. See Pacifico v. Pacifico, 190 N.J. 258, 266-67 (2007) (remanding for a plenary hearing where a PSA provided for a buyout of the marital home but did not specify the terms of pricing to which the parties disagreed); see also Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). At the hearing the judge will have an opportunity to assess the credibility of the movant’s assertions, as tested through the rigors of cross-examination. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Contribution for college expenses from a non-custodial parent originally appeared on NJ Family Issues on November 14, 2011.

When the parties’ agreement embodied in the FJD to bear college costs based on ability to pay, the court is not obliged to apply all twelve factors identified in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), only one of which is the parents’ ability to pay.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

College costs based on ability to pay originally appeared on NJ Family Issues on November 14, 2011.

Once one of the parties’ children enters a residential four-year college involving comparatively higher costs, then it would appear inappropriate to rely solely upon the parties’ incomes as a proxy for their ability to pay. An ability-to-pay analysis would include consideration of the parties’ savings and other assets, as well as their liabilities, in calculating their respective college contributions. Moreover, a child’s attendance at a residential college may constitute a change in circumstances that would justify a re-evaluation of child support as well, taking into account the reduced costs of supporting the child at home, as well as the added obligation of supporting the child away at school through college costs. See Beck v. Beck, 239 N.J. Super. 183, 190-91 (App. Div. 1990) (father’s assumption of substantial tuition obligation, along with other factors, justified hearing pursuant to Lepis, supra).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Once one of the parties’ children enters a residential four-year college involving comparatively higher costs, then it would appear inappropriate to rely solely upon the parties’ incomes as a proxy for their ability to pay originally appeared on NJ Family Issues on November 14, 2011.

On the issue of college expenses, the Family Part judge must analyze and evaluate each of the statutory factors in N.J.S.A. 2A:34-23(a) and must also con-sider additional factors which have been imposed by case law before and after the adoption of N.J.S.A. 2A:34-23(a). See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982); Raynor v. Raynor, 319 N.J. Super. 591, 616-17 (App. Div. 1999); Weitzman v. Weitzman, 228 N.J. Super. 346, 356-58 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

One of the statutory factors that must be considered by the court is the income, assets and earning ability of the child. N.J.S.A. 2A:34-23(7). The parties, of course, are free to waive consideration of that factor, but absent such a waiver the court must examine the child’s earning capacity and her income, if any.

Where child support is awarded pursuant to the child-support guidelines, the sum awarded includes:

Transportation — All costs involved with owning or leasing an automobile including monthly installments . . ., lease payments, gas and motor oil, insurance, maintenance and repairs. Also, included are other costs related to transportation such as public transit, parking fees, license and registration fees, towing, tolls, and automobile service clubs. The net outlay (purchase price minus the trade-in value) for a vehicle purchase is not included.

[Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2321 (2012).]

When parties provide for child support in a PSA, it should be construed in accordance with applicable law. That law recognizes that the costs of transportation are to be considered in calculating child support. Isaacson, supra, 348 N.J. Super. at 583.

As to housing-related expenses, Appendix IX-A, ¶ 8, sheds light on these expenses, providing that child support includes the following:

Housing — . . . [L]odging while out of town,. . . furniture, . . . purchase . . . of household equipment . . ., laundry or cleaning supplies, cleaning and toilet tissues, household and lawn products, stationary, all indoor and outdoor furniture, . . . all small appliances and house[ ]wares (except personal care appliances), all household textiles (e.g., linens, drapes, slipcovers, sewing materials, etc.), and miscellaneous household equipment (e.g., clocks, luggage, light fixtures, computers and software, decorating items, etc.).

[Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2321.]

In Brzozowski v. Brzozowski, 265 N.J. Super. 141, 147 (Ch. Div. 1993), the court recognized “that [the] parent given the responsibility for the day-to-day rearing of the children should be able to discharge that responsibility” with respect to medical decisions. This holding was quoted with approval in Pascale v. Pascale, 140 N.J. 583, 606 (1995).

The Newburgh Court required judges to consider “the financial resources of the child, including assets owned individually or held in custodianship or trust” when determining the parents’ contributions to the child’s education. Newburgh, supra, 88 N.J. at 545.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

College expenses and child support originally appeared on NJ Family Issues on November 13, 2011.

The factors listed in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), must be considered and applied to the parties’ circumstances at the time the child is attending or about to attend college.

A parent’s voluntary payments should not be viewed as a waiver of future objection to similar payments. Voluntary undertaking of a financial obligation for the child’s benefit is not an immutable commitment. Were it otherwise, divorced parents would have strong incentive not to make voluntary payments beyond what they are required to pay by court order or explicit agreement.

The financial circumstances of parents may change, allowing voluntary contributions one year but placing constraints on the parent’s ability to provide the same support and assistance in another year. A parent who no longer has the financial wherewithal to pay for private secondary education is not depriving his child of a right to private schooling; he is managing his financial circumstances according to current needs and abilities. Moreover, attendance of one child at a private school does not create an entitlement in the same for another child.

Unlike college, a high school education is available without payment of tuition and related expenses.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Voluntary undertaking of a financial obligation for the child’s benefit is not an immutable commitment originally appeared on NJ Family Issues on October 19, 2011.