After a New Jersey Divorce, Do Both Parents Have to Help Pay for College?

As a New Jersey Divorce attorney, I am often asked this question.  

First, I explain to the client that it is long established in New Jersey divorce law that children should be able to go to college even if their parents are no longer together.  However, in light of the exorbitant costs connected to higher education parents often bicker (or worse) over who is responsible to pay for what and how much.  

Many times this occurs years after the divorce has been finalized, and then the parties have to go back to the Superior Court of New Jersey to have the matter decided by settlement (with the help of a NJ Family Lawyer) or by the Court. 

The lead case in New Jersey Divorce Law regarding payment of college is Newburgh v. Arrigo.  This case enumerates 12 different factors that a Court must consider when determining each parents contribution towards college.  

These factors include where the child shall live while attending college, what school the child wishes to attend and whether or not the child is clearly committed to attending college.  Recently, I handled a case where one of the most important factors arose; the ability of each parent to pay for college.

A nice fellow came to see me and explained his story.  He had been divorced for a number of years (I was not his original divorce lawyer) and his divorce agreement simply stated that each parent shall pay towards the child’s college education based upon their respective incomes.  While my client earns approximately $250,000 (including any and all bonuses), his ex-wife’s situation was much more complicated.

When the divorce was finalized, the wife was earning about $80,000.  However, after the divorce, she married a billionaire.  Needless to add, she no longer had to hold down a job.  So once the child born of the marriage was ready to begin college, she told my client, “well, looks like you have to pay for all of the college expenses.”  Knowing that this could not possibly be fair, that is when this fellow contacted my office. 

It was very good thing that he did.

First, I explained that one of the factors under Newburgh is her “ability to pay.”  Obviously in this case, the wife clearly had the ability to help contribute towards college expenses.  

Second, I explained that a Court has the ability to “impute” income upon a party.  Many factors are taken into consideration when imputing income.  In this case, as the divorce decree from just a few years earlier did state that wife was earning at the time of the divorce ($80,000). 

Although I attempted to settle the issue amicably, the wife remained impossible to deal with, which was unfortunate.   As a result, we took her to Court and won the case.  

In fact, the New Jersey Divorce Court found the wife’s position to be so unreasonable, the Judge ordered that the wife pay my client’s counsel fees he had to pay to my office for having to go to Court.

One last lesson here - the original divorce agreement (prepared by my client’s original divorce lawyer) simply said each party shall pay “based upon their respective incomes.”  At the Law Offices of Edward R. Weinstein, we make sure that the divorce agreement is crystal clear and consistent with the law.  

For example our divorce agreements are specific regarding the definition of “college expenses” (i.e., tuition, room, board, travel, books, SAT prep courses and the like).   Many agreements also specify that any money that was set aside by the parents for the child’s education (i.e., a 529 College Savings Plan) shall be used before any loans, grants or financial aid are required.   

Long story short, the Agreements prepared by my office minimize the chance that our clients will be forced back into Court and are protected from unnecessary legal fees and drama.  

Come this September, I wish this young man the best of luck at my alma mater, Seton Hall University.