Showing posts with label college tuition and emancipation. Show all posts
Showing posts with label college tuition and emancipation. Show all posts

Thursday, July 31, 2014

Another reason to carefully consider including post-emancipation support clauses in your agreement

Last week, we posted about a recent Pennsylvania case that found that a father did not have to pay college expenses pursuant to his Property Settlement Agreement due to the particular facts and language of the contract (click here to read that post).  This week, we are highlighting a case with the exact opposite results.

In W.A.M. v. S.P.C., the Pennsylvania Superior Court recently held that, pursuant to the terms of his Missouri settlement agreement, a Father had to continue to pay child support for his child, who was enrolled in college.  In this case, Father had agreed, at the time of the divorce, to continue paying child support past the typical age of emancipation under certain circumstances.  One instance where Father had to continue paying was if his child was enrolled in college.  Father argued that he should not have to pay for college because he did not often speak to his child and because under Pennsylvania law, the child was emancipated.  The Court disagreed, because the language of the agreement was unambiguous.  Therefore, Father’s testimony regarding his relationship with his child, along with other evidence, did not matter.

Unlike in the Mazurek v. Russell case, where the court had to interpret what the ambiguous word “unreasonable” meant, in this case, the language of the contract was clear.  Father had to continue to pay child support if certain circumstances arose.  There was no room for further interpretation.

This contrast between outcomes in similar situations further emphasizes the importance of carefully considering whether it is wise to include a post-emancipation support clause in a property settlement agreement or postnuptial agreement.  These clauses, whether simply for child support or for college tuition, can be extremely tricky to draft, especially because so much in the future is unforeseeable.  In last week’s case, the Father in Mazurek may have been able to convince the court that he should not have to pay for his child’s college expenses if he could have demonstrated that his child, for example, had a chronic addiction problem and likely was not ready to attend and excel in college.  On the other hand, the Father in this week’s case, W.A.M., likely still would have been required to pay child support for his child, even if he could have proved to the exact same circumstances to the court, because there was no ambiguity in the contract language for the court to consider.  Even though this may not seem fair, it is a basic tenet of contract law.  Therefore, as we previously emphasized, you must carefully and thoroughly consider whether it is in your best interests to include a post-emancipation support provision in your settlement agreement.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at Law Offices of Linda A. Kerns, LLC.

Friday, June 13, 2014

Hey Dad - I don't want to have a relationship with you, but pay for my expensive college

In New Jersey, as most people know, there is no automatic emancipation of a child from a parent's obligation to pay child support, when the child graduates from high school.  In fact, divorce and separated parents can be ordered by a New Jersey Court to pay for some or all of a child's higher education expenses.  These cases can get especially sticky when the child and the parent have a strained or no relationship.  The court orders the parent to pay, but the child refuses to have a relationship with the parent.  In an intact family, the parent could refuse to pay until the child became more cooperative.

Hot off the press, a New Jersey Trial Court judge delved into the acrimonious butting of heads between a father and college age son, when the son refused to have a relationship with the father, yet expected him to contribute to his college tuition and even increased his demand to cover the anticipated cost of transferring from a state school to a much more expensive, private, out of state school.

The opinion can be found here  and includes a thorough tutorial on the status of the issue in New Jersey.  This may not be the end of the case, as it could be appealed to the Appellate Court.

Thursday, July 26, 2012

My Money, My Right to See Your Grades.

College-age children want privacy from their parents. But if the child is paying for college using child support, then, in New Jersey, that privacy about what they are doing in school goes away. 

In the April 2011 New Jersey case VanBrunt v. VanBrunt, the divorcing parties entered into a Settlement Agreement that said they would share joint legal custody of the children and Wife would be the parent of primary residence, meaning that the children would live with her. 

After Husband filed numerous motions to disclose the daughter’s college records or to have her emancipated, Wife failed to provide Husband with documentation showing that their twenty-one year old daughter was a full time college student. Wife gave many excuses as to why she did not have the records including: her daughter would not give her any documentation, that she was not allowed to obtain the information herself due to her daughter’s privacy rights, and that it was the daughter’s responsibility to provide Husband with that documentation.

The privacy law that Wife relied on is called the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. §1232(g), a 1974 federal law that gives students over the age of eighteen certain privacy rights when it comes to their education records. In most cases, the college or university that the student attends cannot release any information to a third party without the student’s written authorization. 

The trial court disagreed with Wife’s reasons for not handing over the daughter’s school records saying the daughter’s status as a student was directly tied to Husband’s obligation to pay child support and contribute to other finances, including the cost of college. The court held that Husband had a right to the documentation, but only as it pertained to enrollment, course credits and grades. The daughter could not use FERPA to prevent disclosing her college records while still asserting that she was unemancipated and entitled to mandatory child support and college contributions from her father.

Likewise, Wife, who is the one receiving child support, has an ongoing duty to provide the information about whether or not her daughter is still a student. If Wife cannot obtain this information from the daughter, then the daughter would no longer be under the control of the mother and should be emancipated for the purpose of child support and college contributions.

This case was never appealed and therefore is not binding on courts outside of Ocean County, New Jersey. If you have questions about child support that you are paying for a college-aged child, please consult with an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda a. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire.

Monday, April 05, 2010

When does child support end?

In Pennsylvania, child support terminates when a child reaches the age of eighteen (18) or graduates from high school, whichever is later.  So -- if your child turns eighteen during his or her senior year of high school -- child support will terminate upon graduation.  If your child turns eighteen after graduating from high school -- child support will terminate on the eighteenth birthday.  As with any rule, exceptions and deviations exist.  By way of example, a child who cannot care for themselves due to a severe disability may have child support extended.  On the other end of the scale, if an eighteen year old has not completed high school -- but is not pursuing a high school diploma, the child support will most likely terminate.

In Pennsylvania, absent agreement of the parties, there is no child support during the college years and no court compelled payment of college tuition.  (New Jersey's rules do provide for post high school support).

For a family that separates prior to children completing college, these harsh rules can be devastatingly burdensome ot the custodial parent as college age is probably the time when children become most expensive.  However, because children are considered adults at this age in Pennsylvania, the court will not order child support or college tuition payments.  While difficult for the custodial parent, this type of law also protects the non-custodial/support paying parent, from being directed by the court as to his or her  financial participation in an adult child's life.

The mechanics of actually terminating the support depend on the situation.  If the support order covers more than one child, then the amount must be recalculted when the child reaches the age of eighteen.  Some people mistakenly believe that if a suport order covers two chidlren and one child becomes emancipated, then the support number will be reduced by 50%.  However, that is not the case.  The entire order must be recalculated.  By way of example, someone earning $5,000 net per month may have a monthly child support order for two children in the approximate amount of $1,253.  (This assumes that the other parent has no income or earning capacity).  For one child, that monthly amount reduces to $933.

If you are paying or receiving child support, be prepared for the termination date of any child on the order.  Reach out to the other parent and attempt to negotiate a new amount to beceom effective (or complete termination if it only covers one child).  If the other parent does not agree, file a petition with the court prior to the emancipation date.

Recently, the Superior Court affirmed a trial court's decision to terminate child support on a child's graduation date.  Initially, the support had terminated when the child turned eighteen (during her senior high school year). The Domestic Relations section had sent several notice to Mother, asking for the child's high school status.  However, Mother failed to respond and the order was terminated -- even though graduation was five months away.  Mother then petitioned the court for the support to be reinstated, saying she had never rexceived the notices.  The court agreed with Mother.  Father felt that because Mother had not responded to the notices, the support should have been terminated, and not reinstated.  Both the trial court and the Superior Court agreed with Mother.  You can read the entire opinion, Castaldi v. Castaldi-Veloric, here.

Monday, February 22, 2010

The college tuition conundrum

Pennsylvania and New Jersey differ on whether a court can compel a parent to pay for college - and when child support ends.

In Pennsylvania -- a child is considered emancipated once her or she turns eighteen (18) or graduates from high school - whichever date is later.  Accordingly, if your child turns eighteen (18) in October, and does not graduate until June of the following year, the child support will continue until that time.  As with any rule, there are exceptions: for example,  if the parties agreed otherwise or if a child is unable to be emancipated (ie disabled to the  point where he or she cannot care for themselves).  In Pennsylvania, absent an enforceable contract between the parents, a court cannot compel a parent to pay college tuition, or any child support once the child is emancipated.

Courts can, and do, compel child support and payment of college tuition in New Jersey.  Children do not become automatically emancipated at a certain age --- the test is subjective.  Separated or divorced parents can be compelled to pay support through the college years, as well as share in tuition and other education expenses.  There are even some cases where a court has compelled compensation to post - graduate study.

Parents in New Jersey can come to an agreement as to how college tuition will be paid.  Absent agreement, a court generally looks at a variety of factors: each parent's ability to pay, child's aptidue, financial aid available, etc.  Parties can agree, however, to be more generous than the law would ordinarily allow.  Sometimes, in New Jersey, one parent will agree to pay more than his or her share, for one reason or another.

Recently, the Appellate Division of the Superior Court of New Jersey affirmed a trial court decision which compelled a father to pay a share of his child's college tuition.  At issue was the following clause in the parties' marital settlement agreement: "The [p]arties . . . agree that if the children are capable and have the desire to attend college they shall each contribute to the best of their ability."  As the parties were divorced in 1996 -- this clause was written quite some time ago.  Additionally, since New Jersey law would require the parents to contribute, this clause probably offered little in the way of guidance.  Moreover, the clause contains ambiguous language.  After all -- who defines "best of their ability?"

Although the father in this case offered many reasons as why he could not contribute, including that he felt he could not afford it -- the court disagreed.  This opinion was not published, which means it does not have precedential value.  However, it describes the factors a court reviews in making these college tuition decisions.  You can read the opinion here. (Orero vs. Orero, Docket No. A-2230-08T3).  Decided February 19, 2010.

Wednesday, November 18, 2009

That's right, in Pennsylvania, absent agreement, we cannot compel payment of college tuition

In Pennsylvania, unlike in New Jersey, court ordered child support terminates at a set emancipation date, which, absent unforeseen circumstances, occurs when the child turns 18 or graduates from high school, whichever date is later. For quite some time now, Pennsylvania law has declined to obligate parents to provide for secondary education and support after completion of high school.

Recently, the Appellate Court of Pennsylvania addressed the college tuition payment issue. In this particular case, the couple had married in 1988 and had four children. They separated in 2005. At the time, Father was essentially a stay-at-home caregiver for the children and Mother was the breadwinner. It appears from the case, however, that when the parties separated, Father went to live in Florida without the children. The divorce became final in 2006.

In May of 2008, Mother filed a “Petition to Enforce Agreement to Pay College Expenses.” Father responded with a “Petition to Modify Child Support.” After hearing, the trial court reduced the child support from $1,094 per month down to $810 per month, apparently finding that Father’s income had been reduced. However, the court refused to compel Father to pay college tuition.

Mother premised her petition to enforce the payment of college expenses on an apparent oral agreement that the parties had discussed back in October of 2004 (notably, prior to the filing of the divorce complaint). At that time, the parties discussed at their dinner table that Mother would work for a few more years and then retire so that Father could return to the work force and earn an income suitable to pay for the children’s college educations. However, this agreement was never reduced to writing and certainly not made a part of the divorce decree. In fact, the discussion took place while they were still an intact family.

The trial court refused to find the October 2004 discussions formed a legally binding and enforceable contract. While perhaps Mother felt Father had a moral obligation to pay for college, she simply did not present enough support to the court to show an enforceable agreement. Additionally, unfortunately for Mother, the two daughters who testified did nothing to advance Mother’s position. Both girls appeared to not remember or have firsthand knowledge of the alleged agreement to pay college support.

The compelling part of this story appears to be that it made its way to the Appellate Court. An appeal to the Appellate Court (the Superior Court of Pennsylvania) can be quite costly, considering the basic costs such as filing fees and the reproduction of the record, and the attorney’s fees involved in preparing comprehensive briefs. Pennsylvania law remains clear regarding the payment for secondary education: courts simply cannot compel support after the age of 18 absent an agreement by the parties. Here, Mother hinged her argument on an oral agreement. Unfortunately, even if the court accepted all of the evidence that Mother presented as true, she simply did not provide enough proof that the parties had an unambiguous, enforceable agreement that Father would contribute to college. Rather, the testimony showed that the parties had a conversation about their finances, in the fall before their spring separation. The evidence showed that the conversation involved an overall, generalized plan as to working, saving and pooling assets, rather than a specific and comprehensive enforceable strategy defining each parent’s financial obligations.

As litigation and subsequent appeals can be quite expensive, one wonders if it would not have been cheaper for both Mother and Father to simply either come to an agreement, or, refuse to litigate the issue, instead spending the money saved on attorney’s fees and court costs, directly on the children’s college expenses.

The Opinion goes on to address a vocational expert testifying regarding Father’s employment capabilities and earning capacity. Unfortunately for Mother, the court also rejected her arguments on Father’s income and earning capacity and the lower court’s order both regarding the denial of college expenses and the lowering of support, was affirmed by the Superior Court.

You can read this case in its entirety here.

Wednesday, January 21, 2009

The Court Addresses: When Does Child Support End?

Many people wonder how long they will have to pay child support or, if they are the parent receiving the support, how long that support will last. The answer depends on a variety of factors, but most importantly for the geographical areas where I practice, whether you are subject to New Jersey or Pennsylvania law.

In Pennsylvania, generally speaking, a child is emancipated at the age of 18 or graduation from high school, whichever is later. Accordingly, if the child turns 18 during the senior year of high school, the support will last until high school graduation. If the child turns 18 slightly after the high school graduation, the child support will last until their birthday.

In New Jersey, we do not have a bright line, automatic emancipation rule. Accordingly, if a child is still dependent on their parents, and under the parents’ sphere of influence, child support will continue, as well as, in most cases, payment for secondary school expenses, such as college tuition.

As with any rule, there are exceptions and qualifications. However, this represents a disparate result in states that border each other. In New Jersey, the matter has been litigated time and again so the rule will probably not change any time soon. Likewise, in Pennsylvania, the emancipation rule is most likely here to stay.

In New Jersey, the Appellate Division recently reviewed a case wherein the parents had consented to vacate the daughter’s child support on the basis that she was emancipated. Apparently, the father no longer wished to pay child support, and, in any event, had only agreed to pay as long as she continued as a full time student. The mother apparently also had problems with her and the Opinion indicates that she was the complaining witness in some type of criminal charges against her. When the child support was terminated, the daughter actually intervened in the action. The trial court, without holding a hearing, declared that the support for the daughter should continue. When the Appellate Court reviewed the case, it found that the trial court should not have made the decision without a full hearing. Accordingly, the case was remanded back to the trial court.

Notably, the court, as in all of these types of cases, looks to the specific facts, such as the transcript, the child’s grades, the circumstances surrounding her relationship with either parent and whether or not she was under their sphere of influence, and how she supported herself. Therefore, to prepare for this type of argument, be ready to present clear evidence. If you would like to look for this case, the name of the case is Novy v. Novy and the docket number is A-4207-07T2. However, this case does not have precedential value as it has not yet been approved for publication.