Who Pays For College After Separation Or Divorce?

By: Bari Z. Weinberger, Esq.
Weinberger Law Group, LLC

In general, emancipation is the act by which a parent is relieved of the duty to support a child. When determining whether or not a child should be emancipated, the Courts have relied heavily upon foundational case law, which has established that financially capable parents should contribute to the higher education for their children.

In evaluating a parent's contribution toward the cost of higher education, courts may look to the following relevant 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;
6. The financial resources of both parties;
7. The commitment 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 a child has custodial accounts that have been set aside to apply toward higher education costs and expenses, those would likely first be utilized before either parent is assessed a payment contribution. A student is expected to maintain a reasonable course load to illustrate a devotion to his or her studies. Should the student work on vacations or during breaks and summers, that income may be applied toward entertainment expenses rather than toward tuition. However, if the student is working full-time during the school year, then it may be reasonable to expect that the income earned be contributed toward educational or living expenses. Still, parents must recognize that the fact that a student is capable of earning income is not a substitute for a divorced parent's obligation to contribute to a student's support.

Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support due to his or her achievement of independence. If the parties have the ability to pay for college, or a portion thereof, it is likely that in the State of New Jersey, it will be Ordered. Sometimes a judge will look to see the family history, such as if the parents made contributions for an older child while the family was still in-tact. The history of the parent's education is an important element as well. If both parents have college degrees, seeming to illustrate that they are strong advocates for higher education, there is a strong possibility that the court will direct the parents to support the child's path through college as well.

All financial resources of the parties should be assessed so as to determine if the assets need to be invaded to make the payments should income not be available. This would include equity in a home, bank accounts, brokerage accounts, savings bonds, retirement funds, business interests, life insurance cash value, etc. If one party is spending lavishly on expensive cars, boats, collectibles or vacations, while claiming that there is no available money to assist in college tuition, a court should be advised of these significant details.

Divorced parents in the State of New Jersey are expected to experience an economic sacrifice for their children in order to provide them a college education. Courts also refrain from using the cost of attending Rutgers or any other State University or college as an artificial ceiling on college contributions.

Lastly on the issue of contribution, the parties want to set forth whether there is a relationship between the child and the parent. It is not to say that if one parent was involved less in the decision-making process for colleges that the parent will be absolved of all payment contribution responsibility or if the parent has not spoken to the child in a year that the parent will be able to avoid contributions. This is a subjective standard. Many judges look to this factor to see if the parent has made any effort to integrate into the child's life or if the parent has purposely been removed. If the parent's lack in relationship can be deemed contributory, then it will be hard for the parent to point fingers and suggest that the lack in relationship should be a reason to avoid payment.

New Jersey is a progressive State in supporting a child's right to higher education. Parents having separated or divorced will find it difficult in this State to evade contributions.

To Contact Bari Zell Weinberger:
Email: bari@weinbergerlawgroup.com