Understanding a parent’s obligation to pay for or contribute to a child’s college education costs even when there is a serious estrangement

Understanding a parent’s obligation to pay for or contribute to a child’s college education costs, even when there is a serious estrangement between that parent and the child


92.275% of divorced couples in New Jersey with children have the following provision ( or a similar type  provision) in their divorce agreement:

            If their child is academically capable of attending college or pursuing a post-high school trade school education, and the child is desirous of doing so, each party shall contribute to the costs associated therewith, based upon their respective financial ability to do so at the applicable time, after consideration of available grants, scholarships and student loans available to assist in the payment of same.  For purposes of determining each party’s share of the child’s college costs, the parties shall be obligated to exchange their pertinent financial information in the fall of their child’s senior year of high school. For purposes of this agreement, the term pertinent financial information shall include each party’s last 3 pay stubs, their prior years personal federal and state income tax return, including their W-2’s, all 1099’s, and all K-1’s. They shall also provide a summary of their current assets and liabilities.

Education expenses, for purposes of this Agreement, are defined to include, but not be limited to, tuition, room, and board while living on campus / reasonable apartment rental and food costs when living off-campus, registration/matriculation fees, SAT / ACT expense and the SAT / ACT preparation course costs, transcripts, travel costs for the child to visit schools as part of the selection process, books, lab fees and reasonable travel expenses to and from the institution (with the parties to work out an appropriate “cap” on transportation expenses each year for the child).


If there is a dispute as to which school either child is to attend, the issue may be presented to a court or presented to an agreed-upon mediator for resolution.  If presented to a Court for resolution as to the school selection and/or the cost-sharing for the child’s attendance and the Court finds either party’s position unreasonable, the Court shall require that party to pay for the reasonable legal fee expense incurred by the other side for having to present the issue to the Court for a resolution.                                                   


The reason why this type of language tends to be employed by most lawyers is that at the time the parties entered into their agreement, (1) their child was not ready to attend college, (2)  the parties had no idea where their child would attend college, (3) no clue as to how much college would cost, and (4) no clue what scholarships and loans would be available and therefore the expectation was/is that at the applicable time, the parties would work together in sharing pertinent financial information and be on the same page as to where to send their child to college and be on the same page as to how to fund it.  

Unfortunately, too often, parents fight at the applicable time as to the following issues when addressing their respective obligation to contribute to their child’s costs of higher education:

  1. whether to send their child to public in-state college vs an out-of-state school;
  2. whether to spend 20,000 per year on their child’s college costs or spend 60,000 per year on the college costs;
  3. what type of loans to be taken out to pay for their schooling;
  4. whether a child can and should have a car at school and how it is paid for;
  5. whether a child should get an allowance while away at school;
  6. whether child support should be modified, suspended or terminated when the child starts school;
  7. whether parents should be paying for a 4-year college program or for a community college program ( and wait to see how the child does in that setting);
  8. whether the child should have “skin in the game” as to sharing in the cost of his / her college education costs by requiring the child to take out and be responsible for paying for specific loans;
  9. whether a parent has any obligation to contribute to their child’s college costs when there is an estrangement between the child and parent; or
  10. whether a parent has an obligation to contribute to their child’s college costs when that parent was not included in the college selection process.

Every week, the family court system, and family law mediators and arbitrators address applications by one parent or the other to deal with one or more or all of the above issues.  And, too often, one party makes the decisions as to their child’s college selection and the other parent disagrees and then both parties end up spending “ a college education” on the battle over who should pay for what and why. At the heart of this fight is the misunderstanding by one or both parents as to the applicable law governing their obligation to contribute to their child’s higher education costs after graduating from high school.

If a layperson was to read the applicable statute governing a child’s emancipation, they would presume that after he/she graduates from high school, there is a presumption of emancipation and only if that child meets specific criteria can a court impose a legal obligation upon a parent to continue to provide support for that child. And, the parent googles at the statutory criteria and he/she concludes that their child has not met that criteria and therefore he/she does not have any obligation to contribute to college costs and then are shocked that they end up in a court setting with a judge imposing a legal obligation upon him/her for contribution and then imposing an obligation for the payment of legal fees to the other parent for the necessity of the application

Too often, our office will see someone for a consultation setting AFTER the trial judge has imposed an obligation for the payment of 65% - 70% of their child’s 60,000 per year college expense and an obligation for payment of XXXX of their former spouse’s legal fees for the necessity of that application and determination and they want to seek appellate review of the decision since it makes no sense that the court could impose such an obligation on them when the other parent selected a 60,000 per year college when they thought community college was sufficient or a local in-state college was sufficient (at a dramatically lesser cost to the parents). And, in that consultation setting, they are adamant to tell you that the court’s decision is unconscionable since no one asked him/her as to the colleges being considered, the other parent and their child disagreed with his/her suggestion of colleges to attend, disagreed as to what percentage each parent should pay, etc..

Here is an insight. If we “peel back the curtain” on the view the court system has concerning a child’s emancipation, parents need to know that the New Jersey family court system favors children having the opportunity to pursue higher education after high school, to give them better opportunities for their future, even if it means that a parent will be forced to pay for same.

Here is another insight. Presume that family part judges will strain to find a basis to impose a continued financial obligation upon parents, especially when the child has demonstrated the talent and aptitude for that post-high school training OR where the other parent has attempted to bury his / her head in the sand during the college selection process, hoping to avoid any contribution. The latter, I refer to as the “Pilate-like stance, named after Pontius Pilate).

The difficult settings are where you have a child who has not demonstrated an appropriate aptitude or commitment during his/her high school time and one parent wants to send him/her to an expensive school and the other parent wants to send him/her to a community college setting to give the child the ability o prove that he/she can buckle down and do the work before the parents are forced to spend a lot of money on a college program and have the child fail out or spend his/her time simply “partying”.  What a judge will look for in this type of dispute is the good faith of the respective positions being taken by the parents and the good faith of advancing a legitimate plan for the child. Hypothetically,  if you have a child who has a 4.2 GPA in high school, where he/she took honors and AP courses and an aptitude for math or science and is accepted to a recognized top university at 60,000 per year and you think that the child should go to a local community college for 2 years and then try and transfer to an in-state college, presume that the court system will not find your position reasonable and it will strain to impose an obligation upon you to contribute to the cost of that 60,000 per year program even if it means that you will be forced into debt to pay for it.

Alternatively, using the same underlying facts, if you had gone to visit all of the colleges with your child as part of the college process and actively participated in the scholarship, grant, and loan application process, and critically sat down with your child and your ex to discuss the options, the costs, the loan obligations and narrowed it down to a 35,000 per year school vs the 60,000 per year school setting, a trial judge would be forced to roll up his / her sleeves to figure out what was an equitable solution. So, the takeaway is that if you do not press to be actively involved in the entirety of the college selection process, you do so at your peril.

So, what about those settings where you do press for active involvement with the college selection process and the other parent and your child exclude you from participation? The short answer is that you need to document, document, and document every aspect of your efforts to be included in that process and the response from your ex and your child. As an example, its October of your child’s junior year in high school and you send an email/text to your ex saying that you want to sit down with him/her to discuss the ACT / SAT preparation courses/tutors and discuss when your child should take the SAT / ACT. Presume that your ex ignores your email/text, you need to follow up with additional emails/texts (non-threatening) asking to sit down to map out the plan. Presuming that your ex still does not respond, then talk with your child about the preparation and options available (please do not say anything negative about your ex to your child or that he/she did not respond to your inquiries) and reach out to your ex and the school to schedule a meeting with the guidance counselor for advice on which test would be best for your child (and please make sure to include your ex in that meeting).

The fact that your ex may not respond to your efforts to be involved, does not mean that you get to absolve yourself from any involvement. It simply means that you need to push to be involved and document, document and document your efforts to be involved in every aspect of the process instead of waiting for your spouse to reach out to you, tell you what he/she wants to do, or take the position that you tried and she/he did not respond, so you thought that they were not going to ask you for money. Wrong.

The last issue is the claim of alienation or where the child does not want any relationship with the other parent or where the parent tries to be involved in the college process and the other parent and their child refuse to permit that parent to be involved. In the setting where the child refuses to have any relationship with the parent, the court system views the child’s actions differently when he/she is under 18 vs when the child has graduated from high school and at a different stage of development/maturity.

If a child wants nothing to do with the other parent, that parent is obligated to do all within his / her powers to try and reconnect with his / her child including attending and participating in reunification counseling. If the child wants nothing to do with you, again, you cannot simply sit with your head in the sand or take a Pilate-like stance blaming your child or the other parent for the disconnection. From the court’s perspective, you are obligated to undertake realistic efforts to reunite, even if it means filing applications with the court to compel cooperation with attendance at reunification counseling, You may have to file and obtain several orders to compel cooperation with counseling and in each of those applications show your good faith efforts to try and reunite with your child, but if your child disconnected from you and your answer is that it is your child’s obligation to come to you and that you are not going to do anything to try and rebuild a relationship with him/her (while he/she is under 18), then don’t expect the court system to jump to aid you when you claim that your child wants no relationship with you and therefore you should not be required to contribute to his / her college costs.

It will be your burden to prove your good faith efforts at reunification and your child’s bad faith resistance to those efforts and again, you need to document, document, and document everything so that if the issue is presented to the court, you have 50, 60, or even 75 separate emails/texts over years and several court orders compelling cooperation – all of which were ignored by your child and your ex. Absent all of that work, presume that a court will be hard-pressed to figure out what caused the estrangement and hard-pressed to simply blame the child or the other parent for same. In that setting, even though there is no relationship between you and your child, presume that the door is open for the court to impose an obligation.