School Tuition and Divorce in New Jersey

If you’re divorced, you and your former spouse probably agree that your children need a quality education to keep pace with their peers, become self-sufficient, and build the foundation for a good life. But you may disagree about how to pay for that schooling.

It’s common for children to ask for tuition support from the parent who doesn’t have physical custody, and it’s equally common for those parents to resist that request. Most often, the first question is, who pays for private primary (elementary school) and secondary (middle and high school) tuition? After that, the question of college and graduate school tuition comes into play. New Jersey law squarely addresses both questions.

Who Pays for Private Elementary and Secondary School Tuition?

It depends. New Jersey’s case law says that private school in this age range is an “extraordinary expense” for purposes of the state child support guidelines. However, there is a substantial body of case law from the New Jersey appellate courts that says these private school expenses may be approved anyway, because “the privilege of parenthood carries with it the duty to assure a necessary education for children.”

To decide whether a non-custodial parent has to pay for private elementary and secondary school tuition expenses, trial courts must consider evidence about each of the following factors:

  • the non-custodial parent’s ability to pay
  • the parents’ own past attendance
  • whether the child attended the school pre- or post-divorce
  • whether the parents agreed to send the child to private school before they got divorced
  • the religious background of the parents and children (if the private school is parochial)
  • the special educational, psychological, or additional needs of the child and whether the private school meets those needs
  • whether it is in the child’s best interests, generally speaking, to attend or continue to attend the private school
  • whether one parent has already been given the right to select the child’s school
  • whether the enrollment by the parent with physical custody was reasonable
  • whether private school is authorized by the child support guidelines
  • the child’s abilities
  • the respective parents’ past or present involvement in the child’s education, and
  • whether the custodial parent’s current views on private education are consistent with past views.

Who Pays for College and Graduate School Tuition?

Again, it depends. New Jersey’s appellate courts have stated that parents may have an affirmative obligation to pay for all or part of their children’s post-secondary education. One leading case says parents must pay for state, county and community colleges, as well as some private colleges and vocational schools that provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children.

In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.

To decide whether parents must pay these expenses, trial courts assess evidence presented on the following factors:

  • whether the child, if still living with the parent, would have contributed toward the costs of the requested higher education
  • the effect of the background, values and goals of the parents on the reasonableness of the expectation of the child for higher education
  • the amount of the contribution sought by the sought by the child for the cost of higher education
  • the ability of the parent to pay that cost
  • the relationship of the requested contribution to the kind of school or course of study sought by the child
  • the financial resources of both parents
  • the ability of the child to earn income during the school year or on vacation
  • the availability of financial aid in the form of college grants and loans
  • the child’s relationship to the payment parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance, and
  • the relationship of the education requested to any prior training and to the child’s overall long-range goals.

New Jersey courts are specifically required to consider the relationship of the child and parents. Depending on the facts of the case, parents may not be required to pay college expenses for children with whom they have badly strained relationships.

How Can I Prevent This from Becoming an Issue in the First Place?

The easiest way to avoid a battle over these financial matters is to plan ahead. Before you’re divorced, you and your spouse (and your lawyers, if you’re represented by counsel) should hammer out a school tuition settlement that everyone can live with, and include it in your property settlement. That way, you, your ex-spouse, and your children will enjoy a measure of certainty about the future.

My Kids Are 18. They’re on Their Own Now, Right?

Not necessarily. “Emancipation” means that parents no longer have custody of their children, and also that children are no longer entitled to financial support from their parents. The fact that your children have turned 18 doesn’t necessarily mean they’re not entitled to financial support from their parents. New Jersey law doesn’t automatically end child support when a child turns 18 unless the support order specifically says exactly that. If the order doesn’t say that support ends when your child turns 18, then the courts will apply New Jersey law and you may be obligated to pay additional expenses until your child is emancipated.

For more information, see Do Parents Have to Pay for College After Divorce?, by Lina Guillen (Nolo).

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