As high school seniors will soon be celebrating “Decision Day”, the annual tug of war regarding paying for college arrives at my doorstep. Even parents who have addressed this issue in an agreement find [new] ways to fight about it.

A recent case exemplifies this . The parties have 3 children and had agreed years earlier that “they would each contribute to the costs of each child’s college education to the extent of their financial ability upon their consent to the chosen college, which consent was not to be unreasonably withheld”. Common language in a divorce agreement. The Mother kept the Father informed of the college search and acceptances. When the child selected her school, the Father paid half of the deposit. After that, he made no further payment.

After a trial before a Support Magistrate, objections to a Family Court Judge, the case wound its way to the Appellate Division. The Mother argued that the Father had intentionally reduced his income and underreported his moonlighting work. At trial the Father testified that he earned a profit of $1,500 each year from his outside work. However, the Mother showed that the Father had bank statements with substantial unexplained cash deposits and purchases of business equipment. In addition, the Father had signed a mortgage application stating his business earnings were $4,000 per month! While the higher figure certainly made the Father a more attractive candidate as a borrower, he cannot have it both ways, that is higher income for borrowing but lower income for support. Further, the Father did not turn over all of his tax and business records, leading the Court to say “hmmmm…..”

The Father also argued that he was no longer able to work overtime but produced no documentation or witnesses. The court looked at the Father’s ability to earn, not just his earnings.

While this case worked its way through the court system, the child completed several semesters of college, forcing the Mother to take an early distribution from her retirement account to pay for it. In the end, the Father had to reimburse the Mother, and was required to pay for 50% of college as the parents’ incomes were approximately equal. In addition, the case was sent back to Family Court to determine how much the Father had to pay towards the Mother’s attorney’s fees.

April 2020 Margaret Tabak

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