Article by Capehart Scatchard

In almost all cases, one parent pays child support to the other parent after a separation, a divorce or a dissolution. In some of those cases, the child support is paid pursuant to the New Jersey State Child Support Guidelines and in other cases, the child support is calculated by applying ten statutory factors. The statutory factors in non-Guidelines cases can be found in the Child Support Section of this Blog.

In New Jersey, parents of children who attend college are legally obligated to contribute towards the costs of college. In most cases, they are also legally obligated to continue paying child support, although not necessarily in the same amount when the child lives at school. In fact, the New Jersey State Child Support Guidelines specifically do not apply to child support orders when a child lives away from home, even if the prior child support payments were paid in accordance with the Guidelines. This is because the assumptions which underlie the Guidelines no longer apply when the child resides on campus and participates in a school sponsored room and board program.

While this has always been the law in New Jersey, a very recent decision of the New Jersey Appellate Court held that because “there is no presumption that a child’s required support lessens because he or she attends college,” each case must turn on its own facts and circumstances. The Court cited several reasons why the move to college does not automatically mean that the need for child support decreases. First, although it is true that room and board costs at home may decrease, the same costs will be incurred at college. Second, there will be new costs which the child has not previously incurred, such as registration fees, lab costs, books, computer costs and the like. Third, there is a continuing need to maintain the fixed costs of the child’s home for his or her return during school breaks and vacations. Fourth, some expenses remain no matter where the child lives. These include transportation, furniture, clothing, personal care items, telephone charges, insurances, entertainment and spending money. Thus, although the Guidelines will no longer apply in the determination of the amount of child support to be paid on behalf of a college student who lives away from home, that does not mean that there is not a continuing need for and a commensurate obligation to pay child support. Although not explicitly stated, it has also been the law in the State of New Jersey that children must apply for all available loans, grants, scholarships and work-study opportunities. Although these are increasingly difficult to obtain, the availability and receipt of financial assistance will also have to be considered in the overall decision regarding the continued need for child support to cover the child’s expenses.

The Appellate Court noted the obvious concern that the higher the child support award, the fewer funds will be available for college. It also noted that in some cases it may make more sense for some of the child support to be paid directly to the student. In the Appellate Court opinion, the lower courts are directed to apply the same list of statutory factors as are applied to non-Guidelines support cases, as well as the other facts and circumstances particular to each case, in determining whether child support should continue to be paid, and in what amount, when a child leaves for college. The Court also recognized that in the absence of an agreement between the parents, there may be a need for a plenary hearing to determine the parties’ respective incomes, the child’s needs, the child’s contribution or other materially disputed items.