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Unfortunately, one of the most common battles fought in the family courts in New Jersey is over how much each parent should contribute to the cost of their child[rens] college education and over the college selection. Stereo-typically, the language of most divorce agreements in dealing with future college costs is something along the following lines:

Both parties shall participate in the college selection process and “discuss” the selection of an appropriate college for their child. The costs associated with the child’s college education shall be shared between the parties, based on their respective income and asset structure at the applicable time.

The problem with this language is the word “discuss” and how parties interpret it when there is a disagreement over the college selection process or how the college costs should be paid for. A recent New Jersey Appellate Division decision highlighted this struggle between parents and the problem with this language or similar type language.

In Zegarski v. Zegarski, 2019 N.J. Super. Unpub. (App.Div. 2019), at the time of their divorce, the Zegarski’s 2 older children were in attendance at Rutgers and the parties were sharing in the cost of in-state tuition for both children; which costs were manageable. Several years after their divorce, child #3 is ready to attend college and is accepted to one of the top engineering schools in the country, which is dramatically more expensive than it would cost if he attended Rutgers’ engineering program.

In the discussion between Mom and Dad over Rutgers vs the out of state school, Dad took the position that since Rutgers was good enough for their older 2 children, Rutgers was good enough for their 3rd child and while Rutgers engineering program may not have been comparable to the other school’s engineering program, it was still good enough.

In their discussion, Mom took the position that since their 3rd child was able to get into a top engineering program, they should pay for his attendance at the better school and not simply send him to a “good enough” engineering program.

Therein lays the issue.

Both parties dug their heels in with dad saying that he would only pay for 50% of what it would cost for their son to attend Rutgers (and live at home). Mom took the position that since she met her obligation to “discuss” the college selection with her former husband under the requirements of the agreement, she was within her rights to enroll their son in the school he wanted to attend, with the expectation that the costs would be shared between the parties for the out of state engineering school. Yet, when the tuition bill arrived, Dad refused to share in the cost of same, saying that he told his former wife that he would only pay for 50% of the cost of Rutgers.

Mom then filed an enforcement application with the court, explaining why the particular school made sense for son #3 and why Dad should pay for 50% of the costs. The trial judge disagreed with Mom, taking the position that since Rutgers was good enough for the 2 older children, then it was good enough for child #3.

Mom then filed an appeal of the trial judge’s decision and the appellate division agreed in part with Mom.

The appellate division held that simply because Rutgers was good enough for the 2 older children, did not mean that Rutgers was mandated for child #3. The appellate court sent the matter back to the trial court to determine: (1) what the differences were between the engineering programs; and (2) whether Dad should pay for 50% or a different percentage of the cost of the child’s attendance at his current engineering program, or continue to pay 50% of the cost of Rutgers engineering program.

In reaching its decision, the appellate court then offered a few pearls of wisdom to consider. After “discussing” the college selection process as required by the terms of their agreement, both parents remained in disagreement over how to split their son’s college expenses and which school he should attend. The appellate division held that where an agreement requires parties to “discuss” the choice of college and the sharing of the costs of same, neither party has the right to walk away from that “discussion” thinking that his / her position controls. The term “discuss” in the college selection setting is not a conclusion and neither party should think that simply because they “discussed” the college selection, that he /she is then free to believe that his / her position controls. This Appellate panel was suggesting that the choice of college is not a simple day to day type issue and where there is a disagreement over which school or how the costs should be shared, neither should walk away from that conversation with confidence that later on, his / her position will be honored by the court.

As a result of digging in their heels, the parties then spent money on lawyers for the proceeding before the trial court. The parties then spent more money on lawyers to fight in the appellate court ( so that the appellate court could tell the trial court that it did it wrong) and then they spent even more money on lawyers to go back to the trial court to have the court hold a hearing and then decide which school was appropriate and what each party should contribute to the overall costs of his education.

A lot of money was spent on lawyers to address this issue and at the end of the day, the legal fees associated with the fight over which school their son should attend cost Mr. & Mrs. Zegarski money that could have been better spent on their son’s school costs.

The take away from the battle engaged in by Mr & Mrs Zegarski is simple. While you may disagree with your former spouse’s view on how the cost of a child’s education should be funded or which school your child should attend, in the event of a disagreement over those type of issues, it may make better sense to agree to submit the issue to a family law mediator or to a family law arbitrator. Instead of spending thousands of dollars each on the battle, maybe 2 or 3 sessions with a mediator may help bring about a peaceful solution. Alternatively, if you don’t think that you and your former spouse will be able to resolve the issue peacefully in a mediation setting, then agree to submit the issue to a family law arbitrator instead of submitting the issue to the court system. A family law arbitrator is a practicing family law attorney or a retired family law judge, who acts in a role similar to a trial judge in the family part and is selected by you and your former spouse or by the lawyers hired and he reviews the materials presented by both sides and if needed takes testimony from you and from your former spouse (in a conference room setting in his office) and then he rules on the issues presented; which rulings are final, binding and result of significantly less money spent on the process.

And, yes Diamond & Diamond does handle family law mediation and family law arbitration work and its senior partner Richard Diamond is a certified matrimonial trial attorney by the NJ Supreme Court and an accredited family law mediator and family law arbitrator.