A huge controversy in divorce and family over the past hew years here in New Jersey has been the fact that divorced patents are legally obligated to pay for college expenses for their children yet married folks are not. In my opinion as a lawyer who has practiced divorce and child custody law here in New Jersey for the past few decades, I feel another difficult topic for both attorneys and parents alike is payment of a child private school expenses. When my associate attorneys and I are explaining the law to our divorce clients, is sounds something like this.
“Well, if you child has only attended private school for a few years at a young age, a Family Court judge will only order that the child remain in the private school unless the parents can no longer afford it. On the other hand, if your child has been in private school for most of their lives, then the court will most likely order that the child shall remain there until emancipation, again assuming the parties can still afford it.
I’ll never forget the first time I had to explain this legal obligation under New Jersey law to a client. He was in his late 50’s and his wife had filed for divorce. They had one child of the marriage, who was entering their junior year in college. So as we ran down the legal issues in his divorce case that I felt he needed to understand. When we got to the topic of college expenses, I explained that his child would be responsible to obtain all grants, financial aid and loans that they can get. Thereafter, each party must contribute towards the difference based upon their “ability to pay.” He exclaimed, “My parents made me put myself through college and I am a better man for it and that is what my ex-wife and I had always agreed. I politely explained that, through her attorney, I learned that the wife no longer was on board with this plan. He sat there in my office, shocked.
Divorce law is clear that in New Jersey, parents are responsible to support their children when it comes to their private education. This means that if it is in a child’s best interest to attend a private middle school or high school and the parents are divorced, they will each have to share in the costs. Yet, it depends on the facts of each case how much each parent will be responsible to contribute and, if so, what percentage do they have to pay? That was the case in the recent decision of L.B.G. v. J.P.G.
In the case, the parties were married in September 1997 and divorced in January 2005. One child was born of the marriage. On January 10, 2005 the parties executed a property settlement agreement. Pursuant to the agreement, the parties agreed to share joint legal custody of their son; however, the mother would be the residential parent and was solely responsible for child support until May 1, 2007.
Additionally, the property settlement agreement provided that the father would have parenting time on Thursday nights and Sunday afternoons. Both of the parties waived their interests in alimony and the father waived his interest in the former marital home. Moreover, the parties agreed to equally split their son’s college expenses and to cooperate on all important parenting decisions.
I October 2008, the parties filed a consent order that modified the father’s parenting time. Now the father would have parenting time on Wednesday nights and Saturday afternoons through Sunday afternoons. Also, the father agreed to begin paying $490 per week in child support, effective November 8, 2008.
The parties’ son attended public school for the entirety of his elementary education. However, the fall of 2012 he transferred to a Catholic middle school because he was being bullied by his classmates. Even though the father was Catholic himself and had attended a Catholic high school, he opposed his son’s transfer to the new school. He sought to either prevent his ex-wife from enrolling the child in private school or to absolve himself from any obligation to contribute to the cost.
In December 2012 the wife cross-moved for contribution towards the costs of the child’s Catholic middle school and high school education. She certified that her son adjusted well and made a lot of new friends. Additionally, the mother certified that she reached an agreement with the father that she would pay for all of the middle school tuition and half of the high school tuition. Yet, the father disputed the existence of the agreement, stating that his wife was not credible.
Both parties submitted evidence to the court regarding cost and fitness of the Catholic and public high schools in the area. Particularly, the mother stated that that her son would have opportunities at the Catholic school because he could participate in more after-school activities. In January 2013 the trial court denied the father’s motion to enjoin his ex-wife from enrolling their son in private Catholic school. However, the court did grant the father’s motion to compel his ex to bear the full costs of the child’s Catholic school education. The mother appealed.
On appeal, the mother argued that she should not be responsible to bear the full costs of sending her son to a private Catholic high school and Appellate Division agreed. The New Jersey Appellate Division looked to N.J.S.A. 2A:34-23a, the child support statute that governs contribution toward private schooling. Pursuant to the statute, the amount of the child support requires consideration, among other factors, of the need and capacity of the child for education. Yet, the court noted that an overriding consideration of a child support decision would be the best interests of the child. Other factors under the statute include which parent does the child reside with, the parents’ educational backgrounds and the expectation that the child would seek a similar level of education, the parents capability to afford the schooling, how much money (both earned and unearned income and total assets), whether the child has demonstrated in the past a likelihood of success in their desired education (ranging from academics to behavior), the ability for the child to receive a financial aid, grants and the like and the long range goals of the child.
The factor that is a big sticking point in New Jersey right now is when the paying parent and child have barely any relationship. Sadly, this is not necessarily uncommon after a divorce when a child may “take one parent’s side” over the others. Many cases have recently been heard by the New Jersey Appellate Division wherein a parent is forced to pay for private schooling (or college) even when there is no relationship between the parent and child. Needless to say, a parent who is forced to pay tuition for a child who will not return their calls or text messages is extremely upset that the law would force and compel these payments. This is especially true in light of the astronomical costs of college and private schools.
Ultimately, the New Jersey Appellate Division in L.B.G. v. J.P.G. held that sending the parties’ son to Catholic school was in his best interests. Additionally, the court stated that the father was obligated to contribute to the basic support needs of his child since he was unemancipated. For more questions on this fact-sensitive area of the law, please contact my office today.