Payment of College Costs: Gac v. Gac's Impact on Contributions by Non-Custodial Parents

1. What is the leading case concerning college cost contributions by non-custodial parents?

The issue of the payment of college costs has exploded in the world of family law. In a perfect world, both parents should be thrilled to pay for the costs of college for their children. The parents should be elated that their child has not turned into a juvenile delinquent. However, the bitterness of a divorce often turns the children against the non-custodial parent. Moreover, the harsh economic realities of life often make paying for college a monstrous task. In many cases the non-custodial parent often remarries and then starts of new family. A second wife often is many times not at all thrilled to assist in paying for the college expenses of a child born in a prior marriage. The second wife often believes that these funds should be used to pay for the new family.

Another reality of life is that many parents hate paying for child support. Many misinformed parents believe that their child support will automatically end once the child turns 18 years of age and graduates from high school. Many parents are astonished when they realize that in most cases they still have to continue paying for child support even after their child goes to college. Moreover, many parents absolutely go into shock when they realize that in addition to paying for child support, they may also have to pay for a significant portion of their child’s college tuition and other related costs as well. New Jersey has some of the most liberal child support laws in the United States. The laws concerning contributing toward the cost of college are also the most liberal in the country. I constantly advise my clients that I did not create these laws, but that these laws must be dealt with.

After the hysteria wears off, many parents scramble to find ways to terminate their child support and to avoid paying for their child’s college education costs. The purpose of this article is to provide some legal avenues that may enable a non-custodial parent to avoid paying for their child’s college costs. At the very least, this article can assist a non-custodial parent in presenting some meritorious arguments to the court in support of their position to avoid paying for their child’s college education.

I want to make it clear that I support the proposition that all parents should assist their children in paying for college costs. If my parents did not provide me with the financial assistance to attend Duke University then I could not have afforded to go there. If my parents did not provide me with the financial assistance to attend law school, then I would not be a lawyer today. The bottom line is that the current generation of a family has to make financial sacrifices to enable the next generation to prosper. I always advise my clients to assist their children to pay for the cost of college. I also advise my clients to assist their children to pay for any costs to attend law school, medical school, business school, or any other relevant and useful graduate school program. I try to explain to all of my clients that you only have a few children, and that you have to help them get started in this “dog eat dog world.”

Most of my clients listen to my wise advice. However, there is a still sizable amount of my clients who want to avoid paying for college costs no matter what the circumstances are. In the year of 2006, the New Jersey Supreme Court issued a landmark case that gives hopes to many parents who don’t want to pay for their child’s college education. The name of this case is Gac v. Gac, 186 N.J. (2006). This case provides non-custodial parents a strong argument to avoid paying for their child’s college expenses.

In the Gac case, the New Jersey Supreme Court held that under certain circumstances a non-custodial parent does not have to contribute toward the payment of his or her child’s college costs. The Gac court discussed several factors that ultimately led to this landmark decision: (a) there must be a breakdown in the parent/child relationship; b) the child must alienate the non-custodial parent; c) the non-custodial parent is not consulted as to what college the child wants to attend. If these factors are present in a Newburgh/Arrigo type of case, then the New Jersey Supreme Court has held the non-custodial parent does not have to contribute to the college education expenses for the child.

2. What are the facts and the legal holding of the landmark Gac case?

The main issue in the Gac case was whether a non-custodial parent had a legal duty to contribute toward the college expenses of his child. The non-custodial parent was never consulted on the child’s choice of college. Moreover, the child terminated her relationship with her father. The former wife did not make an application for contribution until after the child finished her college education.

The case was eventually appealed all the way to the New Jersey Supreme Court. The prior status of the law was that a non-custodial parent had a duty to contribute to the college costs of his or her child, even if the child did not consult with the non-custodial parent. In the Gac case, the New Jersey Supreme Court held that under the circumstances present, and under a balancing of the Newburgh/Arrigo factors for determining what amount a parent must contribute to college expenses, the non-custodial parent should not have to contribute to his child’s college loans.

Here, the parties were divorced in 1987, and the defendant was granted visitation with his two children. The defendant attempted to establish a relationship with the children through telephone calls and letters. However, the children alienated their father and did not respond. Eventually, the parties’ daughter elected to attend college. The daughter did not consult with her father before she chose to attend Quinnipiac College. Quinnipiac College is an expensive private school, and it costs considerably more than Rutgers or other New Jersey public colleges or universities.
     
After the daughter graduated, the defendant filed a motion to terminate his child support obligation. The plaintiff then cross-moved for contribution toward their daughter’s college expenses. The New Jersey Supreme Court denied the plaintiff’s request to compel the defendant to contribute to his daughter’s college education.

The Gac court held that the facts set forth in the seminal case of Newburgh v. Arrigo, 88 N.J. 529 (1982), clearly contemplate that the parent or child that seeks contribution toward the expenses of college will make that application before the educational expenses are incurred.

3. What are the important points of the landmark Gac case?

The Gac case gives hope to thousands of non-custodial parents who want to avoid paying for the college expenses of their children. I don’t support this proposition. However, the reality of life is that many non-custodial parents don’t want to offer financial assistance to their children for college.

The Gac case held that a non-custodial parent must be consulted regarding the choice of the child’s college that he or she wants to attend. The Gac court also held that the lack of a relationship between the father and his daughter did not justify the daughter’s and the mother’s failure to consult the father regarding college education.

The case essentially reversed the case of Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996). In that case, the Appellate Division indicated that even if a child has severed all ties with a non-custodial parent, he or she could still receive contribution toward college expenses from that parent.

With Gac, the Court established the doctrine that if a child or custodial parent wants to receive a financial contribution from the non-custodial parent for the payment of college costs, then the non-custodial parent must be consulted. The Gac case further held that even if the parties’ daughter had legitimate reasons for terminating her relationship with her father, neither the mother nor the daughter was permitted to incur the college expenses before they consulted with the father. It is important to emphasize that the Gac court did indicate that if the plaintiff had sought contribution at an earlier date, then she may have succeeded in her claims for contribution.

The Gac case established the “failure to consult” doctrine in Newburgh/Arrigo cases. In a college contribution case, if the facts are similar to the Gac scenario, then a non-custodial parent can argue that he was never consulted as to the choice of college. Therefore, as the argument goes, that parent should not be legally required to contribute toward the costs. Another major point of the Gac case is that if there is a breakdown of the relationship between the child and the non-custodial parent, then a family court should be hesitant to compel a non-custodial parent to contribute to the costs of college.
          
It will be very interesting to see how far the family courts will extend the rationale and legal reasoning of the Gac case. Based upon my observations, most family courts will almost always compel a non-custodial parent to contribute toward college costs. Only in the most extreme cases will a court decide that a non-custodial parent has no legal obligation to contribute. If a non-custodial parent wants to avoid the payment of college costs, then there has to be a complete breakdown of the relationship between that parent and the child.

I strongly suggest that all teenagers and custodial parents should establish a paper trail that documents the consultations with the non-custodial parent regarding the choice of the college or university that the child wants to attend. Print out copies of any e-mails that were sent to the non-custodial parents. Send any letters concerning college choice to the non-custodial parents by certified mail. The costs of attending college often range from $100,000 to $250,000 for all four years, so these actions are important. If a child or a non-custodial parent has emails, letters, and certified mail receipts that document that the non-custodial parent was consulted regarding the college choice, then these proofs can be used to thwart any type of Gac “failure to consult” arguments made by a non-custodial parent.

4. Are there any other cases that are similar to the seminal Gac case? 

Yes. New case law is clarifying and expounding upon the seminal Gac holding. In the recent case of Dahms v. DeSanto, New Jersey App. Div., January 9, 2007, the Appellate Division addressed another case that was very similar to the Gac holding. Here, the mother was entitled to a plenary hearing and a complete Newburgh/Arrigo analysis from the New Jersey family court judge. Thus, the order that directed her to pay a proportionate share of her estranged daughter’s college tuition was reversed. The case was then remanded for further proceedings (i.e., the case was send back to the family court for a new hearing).

In the Dahms v. DeSanto case, the Appellate Division was very concerned with the family court’s lack of legal analysis in the case. The Appellate Division held that the family court judge failed to consider the following factors: (a) the mother’s limited financial resources; (b) the impact her estrangement from her daughter had on the father’s decision to exclude the mother from any meaningful discussion about the daughter’s educational prospects; (c) the root factors that led to the breakdown of the relationship, and any exacerbation by the mother’s post-separation conduct; and (d) the lack of evidence showing the parties’ agreement to pay for the daughter’s college education.

5. What if my divorce judgment does not mention an obligation to pay for my child’s college education?

Many people simply get divorced and omit many important provisions in their property settlement agreement or in their judgment of divorce. The divorce centers are relatively inexpensive to use. However, a person may spend thousands of dollars in trying to correct mistakes that a divorce center may have made. It is imperative that a provision spelling out who should pay for college is incorporated into the divorce judgment. Nonetheless, even if this provision is omitted from the divorce judgment, in the majority of cases a court will still require both parents to contribute to the child’s college costs. The court will set the case down for a plenary hearing. These hearings are commonly referred to as Newburgh/Arrigo hearings. The parents will be required to produce their pay stubs, W-2’s, and tax returns, and will have to prepare a CIS. Thereafter, the court will try to fairly designate each parent’s proportionate share of contribution to college expenses.

6. My daughter wants to go to Harvard; however, I only earn $50,000 per year. Will I be required to pay for her tuition?
 
Every application to require a parent to contribute toward college costs is different, and each stands on its own merits and is judged on a case-by-case basis. In most cases, the court will set up a plenary hearing and order the parents to provide a CIS and disclose their financial information. In a situation like the one above, the court would only require the parent to contribute to a portion of the Harvard costs.

An important case is Nebel v. Nebel, 103 N.J. Super. 216 (App. Div. 1968). This case established the “Rutgers” rule. In Nebel, the court ordered a financially able father to contribute to the college education expenses of his son. However, it also held that, while the custodial mother could designate a private college, the court would limit the college expense obligation of the father to his share of the far lesser cost of attending a state university, such as Rutgers, where a quality education could be obtained.   

In summary, if a child is attending an expensive private college or university, then the non-custodial parent can always argue the legal reasoning as delineated in the Nebel case. The non-custodial parent can argue that his or her legal responsibility to contribute towards the cost of college should be limited to the cost to attend Rutgers, or of a similar public college or university located in New Jersey.

In my experience, if a non-custodial parent earns a very modest income, and if the CIS reveals that he is not “awash” in cash, then it is very likely that a court will “buy” a Nebel argument. However, if a non-custodial parent is living an opulent lifestyle, and if he has a fancy home and a nice car, then in all probability a court will not place much weight in a Nebel argument. If a non-custodial parent can afford to pay for an expensive private college, then in the majority of the Newburgh/Arrigo cases the court will order that the non-custodial parent pay for the expensive private college. The key issue in this type of scenario is what the non-custodial parent can afford. Obviously this question can be debated ad infinitum.

7. What if I can’t afford to send my children to college?
          
In many Newburgh/Arrigo cases, a parent has remarried, and he or she is now supporting two families. Many parents cry the blues when they are faced with applications to require them to pay for their child’s college costs. I always try to console the client, advising that the money is going toward a good cause. I always respond to the client by saying, “Don’t you want your child to be successful?” Most clients agree with my logic and see my point!

Nonetheless, some parents still refuse to be agreeable in paying for their child’s college expenses. If a parent is financially challenged, then he or she can apply to the court for a hearing that is commonly known as a Newburgh/Arrigo hearing. The court will order the parties to prepare a CIS, and disclose their pay stubs, W-2’s, and tax returns. Thereafter, a hearing will be held. The court will review the evidence and hear the testimony of the parents. Thereafter, the court will attempt to fairly apportion the costs of college.
 
There is a trend now emerging where some judges will refer college contribution disputes to ESP, or an Early Settlement Panel. This is an excellent idea, and it should be used more often by our courts. At an ESP hearing, two very experienced matrimonial lawyers will try to assist the parties in reaching a settlement on college contribution issues. In most cases, the parties can reach an agreement on the college contribution dispute at the ESP hearing and avoid spending additional thousands of dollars on legal fees. The costs to prepare for a Newburgh/Arrigo hearing can be substantial. Moreover, the money that is saved on legal fees can be used to pay for the college tuition that is in dispute.
 

8. Will a parent be required to pay for child support and also contribute to the child’s college costs?
 
The answer to this question is “maybe.” The courts treat every case on an individual basis. The court will once again hold a plenary hearing that is often called a Newburgh/Arrigo hearing. If a parent is “rolling in the dough,” then in most cases a court will require that a parent continue to pay for child support and also contribute to the costs of college. However, if a parent has additional children from a new marriage, and if he or she is financially strapped, then the court will in most cases only require the parent to either continue to pay for child support or contribute to college, not for both. The courts try to be fair with everyone. Most family court judges do not want to make a parent go bankrupt. However, if a parent has the money, then he or she will pay for child support and will also be required to contribute a fair share toward college.