by Maria P. Imbalzano

A child is not automatically emancipated at age 18 or upon graduation from high school. A child is emancipated when he or she has moved “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.” Generally, emancipation occurs when a child completes his college education.

In most Marital Settlement Agreements, it is specifically acknowledged that a child attending college on a full time basis is not emancipated.

As a result, child support continues, at a modified amount, and college education expenses are apportioned between the parents in accordance with their income and assets until the child graduates.

What if a child takes seven years to obtain a bachelor’s degree? What if a child has a full-time job while attending college? What if a child has assets that could be used to help pay for college education?

These questions have been answered in recent cases decided in New Jersey; however, keep in mind that all cases are fact sensitive and a different result may occur with a twist of just one fact.

In a recent case the parties’ son was almost 24 years old, attended DeVry University (after a series of other colleges), had a job earning $22,600, lived in an apartment costing $1,260 a month, and had taken out student loans to help pay for his college education costs as well as his living expenses.

Upon his mother’s application to the Court to compel the father to continue paying child support as well as to contribute to the college education costs, the Trial Court determined that the son was emancipated and required the son to pay for his college tuition with loans. The Court also stated that if the son finished DeVry University in three years, the son could request that his father reimburse him for the father’s proportionate share of his college loans. The Court’s reasoning in emancipating the son and compelling him to take out loans for his education was to motivate him to finish college.

It is important to note here that the parties’ Marital Settlement Agreement (MSA) stated that child support would continue until emancipation. Therefore, child support was terminated when the Court determined the son was emancipated. There was a separate provision in the MSA that governed the parties’ obligation to pay toward their child’s college education. On appeal, the Appellate Division agreed that the son was emancipated because he earned enough to support himself and moved beyond the sphere of influence.

Therefore, child support was not required by either parent. However, the son’s emancipation did not eliminate the parents’ obligation to pay for his college education expenses pursuant to their Agreement.

In another recent case, the Court dealt with whether a child’s inheritance could be considered when fixing a parent’s support obligations, which include college education. It was determined that a child’s assets may not be used to fulfill a support obligation of the parent. Therefore, in calculating child support, accounts in the child’s name, whether in trust or in custodianship, shall not be considered in setting a parent’s child support obligation.

New Jersey Courts have included college education expenses as part of a child’s necessary support; therefore, it follows that a child’s assets should not be considered in apportioning college education expenses between the parents.

This is in direct contravention to the seminal case of Newburgh v. Arrigo in which the Supreme Court of New Jersey held that a court can consider a child’s assets (among many other considerations) when determining the parents’ proportionate share of college education expenses.

Many of these issues can be dealt with ahead of time through a carefully drafted Marital Settlement Agreement specifically dealing with emancipation and how it relates to college education expenses, as well as the effect a child’s income and assets has on the parents’ ultimate contribution to college.

Maria P. Imbalzano is co-chair of Stark & Stark’s Divorce Group. For questions or additional information, please contact Ms. Imbalzano at mimbalzano@stark-stark.com

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