Can I Pay Less Child Support While I Go Back To School To Earn A Degree?

By Robert B. Kornitzer, Esq. and  Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Child support obligations are not set in stone, and courts have broad discretion to set aside or modify such obligations for several reasons, including simply because the circumstances of one or both of the parents have changed since the support order was originally entered. A parent losing their job or suffering a significant reduction to their income are likely good reasons for the court to modify a support order, but it is also well established that relief from support obligations should not be granted if a party is voluntarily unemployed. The same rule is also applicable in instances when a parent is voluntarily under-employed; for example, a highly skilled computer programmer who could earn $100,000 per year in that field choosing to work as a substitute teacher instead and earn just $30,000 per year.  Most would probably agree that a parent should not be permitted to escape their child support obligation because they made the decision not to work or not work up to anywhere near their full potential. Notwithstanding this general rule, consider the following: A husband and wife have a child; upon divorce, the parents enter a consent order requiring the husband to pay the wife an amount each month for child support; a few years later, the husband, who is still in only in his late-twenties and working two jobs, realizes that neither of his jobs have any opportunity for growth and he has no long-term future with either company; the husband concludes that if he is to establish a well-paying career and be a good provider for his child he must earn his Bachelor’s Degree; therefore, in order to better himself and provide a better future for his child, the husband decides to leave both jobs in order to attend college full time to earn a degree; the husband believes attending school full time, rather than keeping one or both jobs and attending school part time, is the better choice for himself and the child because he will be able to earn his degree much faster, and therefore be able to generate more income for the child’s benefit in a shorter period of time; accordingly, the husband asks the court to have his child support obligation substantially reduced while he is attending school and not working.

A request to have a child support obligation modified based on the above facts seems a lot more legitimate and genuine than when the same request is made by a parent who doesn’t want to be employed simply because they are lazy, unmotivated, or just don’t care. Perhaps many would agree that reducing child support on a short term basis in order to permit a parent to earn a college degree, which will likely result in that parent earning a much higher income, is actually in the child’s best interest, albeit for the long term.  After all, in this day and age it is very difficult to establish a well-paying career for one’s self without (at least) a Bachelor’s Degree, and having a higher income will be very helpful for paying expenses such as the child’s college education and other necessaries.   Recently, however, a court rejected, and the Appellate Division affirmed, an application to temporarily reduce child support based on very similar circumstances to the above hypothetical in the case of Zavaglia v. Bray. The trial court noted that the husband’s loss of employment while he would be attending college was not only voluntary, but also temporary, and therefore no modification of the support order was justified.

Overall, while one’s desire to better themselves and increase their earning potential for the benefit of their child is certainly commendable, based on Zavaglia, it does not appear that courts will permit parents to forsake their child support obligations, even on a short term basis, for this reason alone.

The Case of Rachel Canning and Parents’ Obligations to Pay Support and Tuition

It seems as if last week all the news outlets, local and national, were abuzz with the case of Rachel Canning, who filed a lawsuit against her parents here in New Jersey demanding support as well as private high school and college tuition payments – all despite the fact that she has for the last five months been living with another family. The case has all the right ingredients to make it a headliner: the attractive school-girl who is alleged on one hand to be an honors student and athlete, yet on the other an entitled party-girl brought home drunk mid-week by her boyfriend’s parents. There are her parents, who continue to profess their love for their daughter, and desire to see her home, but also admit their frustration at parenting a disobedient child who they feel engages in dangerous behavior. And there is also the weird involvement of a best friend and her local politician/lawyer father, who has candidly acknowledged his bank-rolling the litigation (but is asking for reimbursement).

Since gaining a national audience, the brashness of the suit has in some respects overshadowed the serious legal issues at play, as well as the sad reality that a family’s most private affairs have been forced into the open for critique and judgment. More than anything, it is a reminder that family law deals often with some of the most emotionally raw and culturally difficult issues. It also concerns rights often viewed as fundamental to our notions of “family.” At its core, the case pits the constitutional rights of parents to parent their child as they deem fit, without interference (and judgment) from outsiders, against the parens patriae role of the state to ensure a child’s well-being.

Moreover, mixed up in this, as a delimiting factor, is whether the child is emancipated such that she even has grounds to bring her case. (I have written previously about the standards involved in emancipating a child here). Thus, the parents and the child have vastly different views on how she came to leave the parents’ home. Rachel says that she was effectively thrown out of her parents’ house while mom and dad say she voluntarily left because she was unwilling to follow certain rules and help with chores. Her emancipation status is critical to whether the case proceeds to a hearing on what, if any, support and/or college costs the parent’s might be obligated to pay.

At the hearing this past March 5, 2014, the Court denied Rachel’s emergent application, urged the parties to try to work out a settlement, and yet scheduled a return date for April 22nd. Should the parties return without a mutually agreeable resolution, the Court will likely move to schedule a hearing on the issue of emancipation as a predicate question to the larger dispute of financial obligation.

The court acknowledged the difficulty of Rachel’s position, noting, “[d]o we want to establish a precedent where parents live in basic fear of establishing the rules of the house?” Moreover, the court suggested, “[allowing the emergent order] would represent essentially a new law or a new way of interpreting an existing law … A kid could move out and then sue for an Xbox, an iPhone or a 60-in television … We should be mindful of a potentially slippery slope.”

Further highlighting the implications of Rachel’s request, the parents’ attorney suggested  that allowing the application would embolden other children to say to their parents, “I am going to live with my [significant other] no matter what you say, but you’ll still have to pay for my college.”

The choice of college as the attorney’s example is prescient. As other commentators on this matter have noted, were the issue of college costs to come up in the context of a divorce between Rachel’s parents, the court would most certainly hold them liable for contribution toward that cost. But intact families enjoy a functionally higher level of privacy and autonomy than divorced families and the decision to fund college has historically been deemed a “family” decision. Thus, if married parents decide they won’t contribute to college, their decision is typically free from questioning by third-parties.

Finally, in a likely foreshadowing that this matter may end not in a bang but a whimper, recent news sources are now reporting that Rachel has reunited with her family and siblings, though the lawsuit itself remains pending.

UPDATE: The case against Rachel’s parents has been officially withdrawn.

Emancipation of a Child – Not So Fast

When does a parent’s obligation to pay child support end? Contrary to what many people believe, it doesn’t end when the child turns 18 years of age.
Under New Jersey law, parents are responsible for supporting thier children until they are emancipated. Emancipation is defined as when the child “moves beyond the sphere of influence of their parents”. Typical emancipation events include the child’s completion of college, marriage or joining the military.
But emancipation is not always so clear. Even if a child takes off a semester (or two) from school, that child may not be deemed emancipated. This area of law is very fertile for hotly contested litigation. For example, what happens when a child withdraws from half of his classes? What happens if he fails classes? What happens if she is on a seven-year pace to graduate college?
Emancipation issues are very fact-specific; meaning that every case is different. While judges often give the benefit of doubt to the child (a product of a broken household), at a certain point, the judge is likely to say “enough is enough” and declare the child emancipated (thus relieving the parents of a child support obligation).

A Parent’s Contribution to College Expenses Can be Affected by the Remarriage of a Former Spouse

When assessing each divorced parent’s contributions to their child’s college expenses, the totality of each parent’s financial picture must be evaluated. This picture may even take into account that one parent has remarried.
While the new spouse will not be ordered to contribute to a stepchild, there may be significant economic benefit that accrues to the remarried parent, as a direct result of the financial benefits of the new spouse’s income and assets. For example, household expenditures of the parent may be reduced as her spouse is now footing part of those household expenditures.
In that event, the remarried spouse may be ordered to contribute more towards a child’s college expenses than would have been ordered if the remarriage had never taken place. (See Hudson v. Hudson, 315 N.J.S.577, 584, App.Div.1998)