With college education costs soaring (approximately $50,000 per year for private college tuition, room, board and fees) and unemployment still hovering near 10 percent, the payment for a child’s college education is an issue for all families. The issue becomes even more difficult for divorced parties.

More often than not, divorcing parties provide for the probability that their children will incur college education expenses in the future in their Marital Settlement Agreement. However, because that eventuality has not yet occurred, the language in the agreement is usually in general terms, such that the parties’ desire for their children to attend college, and when the time comes, they will agree to participate in the payment of said costs dependent upon their income and assets at the time. Usually, there is also language that the parties will cooperate in having their child apply for scholarships, grants and loans to help defray the costs of said education.

In the best of all possible worlds, during their child’s senior year in high school, the parents and child will collaborate and reach an agreement as to which institution the child will attend and what percentage of the costs each parent will pay. Yet, that does not always happen between divorced parties, who many times refuse to discuss anything civilly after a divorce has occurred.

As a result of the lack of communication, all or some of the following problems arise:

• One parent and the child choose a school without consulting the other parent;

• The other parent refuses to respond to communications from the parent and/or child requesting input;

• The child chooses a school, a contract is signed, and one of the parents has not agreed to that school;

• The child attends a college for one or more years before the paying parent requests payment from the non-paying parent.

If a paying parent does not communicate with the other parent, or does not bring the matter to the court in a timely manner, he/she may not be able to receive the contribution contemplated. In a recent New Jersey case, a mother accepted negligible contributions from the father for the first two and a half years of their daughter’s college education (less than 7 percent of the total cost).

During the child’s junior year, the mother requested a greater contribution, commensurate with the father’s income — which would have been 68 percent of the total cost. When he did not agree, she filed a motion with the court. While the trial court ordered the father to pay for 68 percent of the daughter’s college education costs for all four years (less what he had already paid), the Appellate Division disagreed. That court held that the father did not have to make additional contributions toward the first two and a half years of his daughter’s education, but must pay his 68 percent proportionate share for the last year and a half.

The Appellate Court felt that the delay in seeking contribution by the paying parent resulted in a huge accumulation of college expenses which was not anticipated by the other parent, and he did not have the funds to pay it out of his current income or assets. Once the request had been made during the daughter’s junior year to pay his proportional share, he could have then planned for those payments.

The lessons to take from this case are clear: as soon as practical, the parents should communicate concerning the many issues inherent in selecting a college; a parent or child seeking contribution toward those expenses must request it before the expenses are incurred; and, if the requested parent refuses to pay his/her proportionate share, the parent seeking contribution should initiate the application to the court before the expenses are incurred.

Maria P. Imbalzano is a shareholder in Stark & Stark’s Divorce Group. For additional information, please contact Ms. Imbalzano at 609-895-7264 or by email at mimbalzano@stark-stark.com.

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