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Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

  • 1.  Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 12:02 PM
    You know how we all include a provision in MSA/PSA's that children are required to take available financial aid and loans? According to one appellate panel, they're all unenforceable.

    Judges Koblitz and Suter affirmed a trial court opinion that found it was "unfair and unjust" to require [the child] to apply for "all loans, grants, aid and scholarships available to her" and to apply them first to the
    college costs because [the child] "should not be bound to a contract which she is not a party to" and because the parents "have a legal obligation to support" her "and cannot compromise that obligation even if they both agree." The court found this provision of the PSA is "repugnant and will not be enforced." The court addressed loans, financial aid, grants and scholarships. The court would not enforce the provision regarding loans and financial aid ... The court found "unfair and unjust" the provision that required [the child] to apply for loans and financial aid because it was the parents' obligation to pay for college and they had the ability to do so.

    This sounds a lot like Andrew Rochester's case a couple of years ago where a child who had moved in with a relative sued both her parents for college contribution.

    If intact families can require a child to obtain "all loans, grants, aid and scholarships", we're now being told the divorced parents can't do so? That all these provisions in all the agreements we've written are null and void? I wasn't involved in this case, but hope someone applies for cert on this. We're talking about parents controlling their financial future and including a reasonable provision that a child share in the cost of his/her education.

    There was one bright spot in the decision - many of us have had judges hold that a plenary is always required when a Newburgh / college expenses motion is required (sometimes meaning more cost in the hearing and discovery than the amount at issue). The App Div noted "Application of the Newburgh factors did not require a plenary hearing here. It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required. Citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). There were no disputed issues of fact involving the Newburgh factors that would warrant a hearing.

    (Thankfully only unpublished) decision: www.dpdlaw.com/MFWGO.pdf

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  • 2.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 12:06 PM

    I saw this too. My thinking was if the parents are exceptionally well off, that their financial resources could vitiate the child contribution need. The article doesn't say what the parent finances are, but that was my guess.

    Tom King, Esq

     

    Thomas R. King, Esq

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  • 3.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 12:10 PM
    At 12:06 PM 8/3/2018, you wrote:
    I saw this too. My thinking was if the parents are exceptionally well off, that their financial resources could vitiate the child contribution... -posted to the "Family Law Section" community

    Mom made $89,499 and Dad $217,412. Better than most of us do, but I don't think it's "exceptionally well off" in New Jersey...and especially when talking about paying for an education at Georgetown.


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  • 4.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 12:08 PM

    Apparently I'm not the only one who noticed this and was troubled by it: https://njfamilylaw.foxrothschild.com/2018/08/articles/college/are-agreements-to-make-your-children-take-out-student-loans-to-pay-for-college-enforceable/?utm_source=Fox+Rothschild+LLP+-+NJ+Family+Legal+Blog


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  • 5.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-05-2018 12:18 PM
    Save link in forms/research 



    Natalee Picillo, Esq. 

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  • 6.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 01:41 PM
    I made this exact argument years ago when the mother was insisting that there were student loans available to fund 100% of the child's college expenses. The Appellate Div rejected my argument that the child could not be bound by an agreement that she was not party to.
    Barbara Ulrichsen
    Ulrichsen Rosen & Freed
    114 Titus Mill Rd.
    Unit 200
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  • 7.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 01:47 PM
    I guess we all need to put a provision in our PSA that states that if the child does not elect to apply for financial aid, etc., the parents agree that they have no obligation to contribute to the child’s college as if they were an intact family or that the parents will only contribute to college costs if the child applies for financial aid, etc. The court states that you can not bound a child to contract that it was not a party to nor can the court force a parent to pay for something that the parents both agree that they will only contribute to under certain circumstances.

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  • 8.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 01:54 PM
    I guess we all need to put a provision in our PSA that states that if the child does not elect to apply for financial aid, etc., the parents agree that they have no obligation to contribute to the child's college as if they were an intact family or that the parents will only contribute to college costs if the child applies for financial aid, etc. The court states that you can not bound a child to contract that it was not a party to nor can the court force a parent to pay for something that the parents both agree that they will only contribute to under certain circumstances.


    This wouldn't withstand the ruling. It would count on the factor of "what the parents would have done if still together" (or however they word it), but this ruling says the parents can't restrict the child's independent right to have college paid for - can't contract away between them the child's right to support (even though this isn't CS, it's college -- which is different). At least one of the judges on the panel has a bias in this direction generally. She turned down an emergent application to have someone released due to inadequate findings on ability to pay...would've been my only loss on one of those, but then the Supreme Court stepped in and ordered the obligor be released. Point is that it's an outlier judge - I think the ruling Barbara got is more in line with the law.


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  • 9.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 02:02 PM
    I suppose one could insert a provision that if the child fails to apply for all available loans, scholarships and aid neither parent will take the other to court to force contribution, thus leaving it to the child to take court action against the parents.

    Lawrence A. Fox, Esquire
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  • 10.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 03:58 PM

    I am in favor of parental duty to contribute to college.  However the kid has to have skin in the game too.  I cannot understand how a judge could find that making a kid graduate college with $22,000 in debt is "repugnant."  

    I find the Judge's decision on the issue repugnant.  When one attends college he or she is 18 and thus an adult.  He or she should have an adult responsibility to contribute to his or her college education.  In fact, that is one of the factors in Newburgh, the amount of financial aid available.   This decision will only aid those people who want to make NJ like PA and abolish the duty of parental contribution to college.  When the pendulum swings too far one way it is sure to swing back the other way.

    I would like to know what kind of world the trial judge in this matter lives in where making a child help pay for college is "repugnant."

     

    Michael S. Rothmel, Esquire

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  • 11.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 02:39 PM

    The moral of the story is : settle, because life (and litigation) is like a box of chocolates.

     

    Robert E. Goldstein, Esq.
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  • 12.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 02:46 PM
    Good recall,Barb. What about kids 2,3, etc? Will they get "compromised?" Repugnant indeed. 

    Sent from my iPhone



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  • 13.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 02:59 PM

    Query: Does this decision (albeit unpublished), in conjunction with the recently revised child support rule, suggest that children must be independently represented in every case? Obviously, such a result would seem ludicrous, but how do we reconcile that with the fact that parents directly and indirectly impact support and support related obligations for children all the time. Just wondering...

     

     

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  • 14.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 03:56 PM
    Query: Does this decision (albeit unpublished), in conjunction with the recently revised child support rule, suggest that children must be independently represented in every case? Obviously, such a result would seem ludicrous, but how do we reconcile that with the fact that parents directly and indirectly impact support and support related obligations for children all the time. Just wondering...

    Or do we need to change the language we use somehow? Ordukaya says parents can depart from the guidelines so long as they're cited, attached, and the departure is knowing. So, if we included some kind of language that made it clear that the requirement that a child help finance his/her own education is part of an overall resolution and a known departure, would that survive appellate review?

    Or are the kids to be viewed as potential adversaries who could abrogate any agreement reached by their parents?

    Or join the 43 other states that say parents can't be required to pay for college at all?

    Or just call a spade a spade here.... This is just a bad decision.



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  • 15.  RE: Troubling unpublished decision - kids applying for college aid unenforceable / MFW v. GO

    Posted 08-03-2018 05:04 PM

    Probably the latter. I haven't read it yet, but I'm sure the result was due to the fact that it just wasn't fair to the child. Bottom line.

     

    Charles F. Vuotto, Jr., Esq.

    Starr, Gern, Davison & Rubin, P.C.

    Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney

    Fellow of the American Academy of Matrimonial Lawyers

    Certified by the American Academy of Matrimonial Lawyers as an Arbitrator

    Qualified by the Supreme Court of New Jersey as an Economic Mediator

    2016 Tischler Award Winner given by the NJSBA

    for Lifetime Achievement in Family Law

    105 Eisenhower Parkway, Suite 401

    Roseland, NJ  07068

    Tel. 973-403-9200, Ext. 246

    Fax 973-364-1403

    Email: [email protected] 

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    Website: www.vuotto.com

     




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