If you divorce when your children are in grade school, college costs might be the last thing on your mind. However, many divorcing parents address college expenses in their marital settlement agreements, called property settlement agreements in New Jersey. PSAs are then incorporated into enforceable divorce decrees. This doesn't guarantee, however, that circumstances won't change in the intervening years affecting parents' ability and willingness to pay.
Terms of the Judgment
New Jersey is one of the more aggressive states in the country when it comes to enforcing divorce terms that provide for college costs. However, it's usually difficult at the time of your divorce to give the court something specific to enforce. If your child is young, you have no idea what school he'll eventually attend or what the tuition and costs will be at that time. Therefore, most property settlement agreements and divorce decrees – called divorce judgments in New Jersey – are somewhat vague regarding provisions for college. They might say that parents agree to contribute, but they rarely state to what extent or exactly how much. This usually results in parents going back to court to enforce and clarify provisions for expenses when college time arrives.
If your judgment is unclear as to exactly how you and your ex-spouse are going to pay for college, you can file a post-judgment motion with the court. This will typically result in a post-divorce trial, called a plenary hearing. During a plenary hearing, the judge will take testimony and review proof of each parent's current financial situation. Ultimately, the judge will decide what percentage of a student's college expenses each parent must pay. Some issues New Jersey courts consider include each parent's ability to contribute and whether your child has achieved grades that make it reasonable for him to pursue education beyond high school. Your child also has an obligation to contribute to his own college expenses by applying for grants, scholarships, student loans, or by working at least part-time.
Non-custodial parents often argue they had no voice in deciding what college their child attends. They may be obligated to help pay for a school they don't approve of and can't possibly afford. New Jersey courts have adopted the "Rutgers Rule" to deal with these situations. The Rutgers Rule can limit parents' contributions to the amount of tuition and costs a state university would charge, rather than a private school. For example, if you're enforcing the college terms of your judgment because your child wants to go to Yale, it's entirely possible that the court will cap your ex's contribution at what it would cost your child to attend Rutgers, especially if your ex does not have the ability to help finance an Ivy League education. A non-custodial parent might also argue that he hasn't been part of his child's life in recent years. If the parent has tried to maintain a relationship with his child but the child has rebuffed him, the court doesn't have to uphold or enforce the college provisions of your judgment.
College Costs vs. Child Support
If you go back to court to enforce the terms of your judgment, it may very well affect the amount of child support you receive as the custodial parent. Unless your ex is wealthy and can clearly afford to pay child support and contribute to college costs as well, a New Jersey court probably will not obligate him to do both. If the court orders him to contribute to college costs, this is often in lieu of paying child support. An exception might exist if your child is living at home and commuting to college, but even this must be decided by a judge on a case-by-case basis. New Jersey child support guidelines don't address support for children who have graduated from high school.