In his June 13th decision in E.J. v. M.J., Nassau County Supreme Court Justice Edmund M. Dane resolved the complex financial issues arising when a divorce action is commenced after a child begins attending a private university, but before the child turns 21 or graduates. The fact pattern presents a blend of Equitable Distribution and child support add-on issues.

Here, the parties were married in 1997 and had two children born in 2001: a son who by the time of the decision had turned 21 and had just graduated from Quinnipiac College and a daughter with developmental disabilities for whom the parties had agreed to adult dependent support.

The wife commenced this divorce action in May 2021. The parties entered a Settlement Agreement resolving most of their issues. However, issues of their son’s college education expenses and counsel fees remained to be decided upon written submissions.

The wife alleged that in the year prior to commencement of the action, the husband signed a series of Parent Plus loans for their son, totaling approximately $141,000. She argued that the Court should consider the husband’s financial ability to contribute to those expenses, as well as the academic backgrounds of the parties and the best interests of the child. The wife further contended that if she were to be obligated to contribute to the Parent Plus loans, her obligation should be capped at a SUNY rate. The wife maintained that there was no prior agreement between the parties regarding the payment of college expenses for their child.Continue Reading Apportioning a Child’s Pre- and Post-Divorce Action Commencement Private College Expenses

It is common for child support to continue to be paid while a child is away at college. A child often will return  home for perhaps four months of the year. What happens when the student just stays there year round?

Often in divorce stipulations of settlement, the parties will define when a child will be deemed emancipated terminating the child support obligation. One of those occasions is often a permanent change of residence of the child away from the residence of the deemed custodial parent.

It is common for such a change of residence to exclude one occasioned by a child’s attending college away from home. Such reflects that the custodial parent must have shelter available; and pay for food and other expenses while the child is home. Often, expenses for clothing, entertainment, and other items are paid year round. Sometimes a credit is given against the periodic support obligation for all or some fraction of the room and board expenses paid by child support payor.

What happens when a child simply does not return home while attending college? That was the issue presented to Nassau County Family Court Support Magistrate Sondra Toscano in Matter of Anthony C. v. Alison C., 2021 N.Y.Misc. Lexis 3115.Continue Reading Terminating Child Support While Child Away at College

It is common for the parents of young children when entering a divorce settlement agreement to defer until the children approach college age the determination of the parents’ obligations to contribute. The language chosen to express that deferral may be significant.

The recent decision of the Appellate Division, Second Department, in Conroy v. Hacker, lets us know the agreement language is significant. But we are left asking what would have happened without it.

In Conroy, the parties were married in 1991 and were the parents of two children. Their 1999 divorce judgment incorporated, but did not merge, a 1998 separation agreement. As relevant here, the separation agreement stated:

The parties are not making any specific provisions for the payment of college expenses which may be incurred on behalf of the infant children because of the tender age of said children as of the date of this Agreement. The parties do, however, acknowledge an obligation on each of their parts to contribute to the children’s future college expenses in accordance with their financial abilities at that time.

Continue Reading Enforcing the Divorce Settlement Agreement To Defer Fixing College Obligations

Two people fighting over money / business transaction / giving & taking money / shopping / divorce / power struggle / etc.

A decision last week of the Appellate Division, Second Department, points out that the rules concerning the recovery of overpayments of child support may not always be logical, and in the end may not best benefit the children the support was intended to benefit.

The parties in McGovern v. McGovern had executed a stipulation in 2007 that was incorporated but not merged into their judgment of divorce. The stipulation required the father to pay the mother child support each month for the parties’ two children. That obligation was to continue until, as is here relevant, one of the children began attending a residential college, at which point the child support obligation would be reduced. The stipulation also required the father to pay 60% of the children’s educational expenses, but allowed him to deduct any room and board payments which he made from his child support obligation.

In February 2014, the father filed a petition with the Westchester County Family Court seeking a downward modification of his child support obligation on the ground that the older child had started college in September 2011. The father also alleged that from September 2011 to February 2014, he overpaid child support because the Support Collection Unit failed to reduce his child support payments after the oldest child started college. As a result, the father requested an overpayment credit towards his child support obligation.Continue Reading Recoupment of Child Support Overpayments From Add-on Expenses (College); Not Future Support

female graduate with her fatherWhen a divorce settlement contemplates paying child support throughout four years of college, what happens when the child graduates in three?

The statutory obligation to support a child ends at the child’s 21st birthday. It is common with divorce settlements to extend child support beyond the 21st birthday if the child is continuing to attend college on a full-time basis. However, defining when the periodic support obligation will end is not always made clear.

Take the March 30, 2016 decision of the Appellate Division, Second Department, in Fleming v. Fleming. The parties’ divorce stipulation of settlement required the father to pay periodic child support until the children reached the age of 21, or the completion of “four (4) academic years of college,” whichever occurred last, but in no event beyond the school year of the child’s 23rd birthday.

However, the parties’ daughter graduated from college after only three years of study, one month after her 21st birthday. The father stopped paying child support. The daughter went on to graduate school.

The mother moved to enforce the stipulation’s obligation for the father to pay periodic child support. She asserted that the stipulation required the father to continue paying child support during their daughter’s first year of graduate school. Suffolk County Supreme Court Justice Stephen M. Behar granted the mother’s motion, finding that the child had completed only three academic years of college. Justice Behar directed the father to continue paying child support until the child completed “four (4) full academic years of college, or until the child’s 23rd birthday, whichever occurs first.”

The Second Department reversed.

When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.

Continue Reading Support When the Child Graduates College in Three Years

College Fund 3Should a court reinterpret a divorce settlement agreement in light of New York’s public policy? It is one thing to void a contract provision as violative of that policy. It’s another to pretend that the contract was intended to be consistent with that policy.

Take, Monroe County Supreme Court Justice Richard A. Dollinger’s recent decision in Luken v. Luken. There, the parties’ June, 2014 separation agreement provided that the couple would jointly finance the college education for their sons. At the time of the agreement the older son had completed his first year of college; the younger son was in high school. The husband was to pay 70 percent of the college cost, the wife the remaining 30 percent, up to a combined cap of $42,000. The agreement also gave the husband a college expense credit against his child support obligation:

The father shall be entitled to receive a credit against his child support for payments for college educational expenses as set forth herein.

The agreement had obligated the father to pay child support of $33,996 annually for his two sons. The amount was calculated using the $141,000 C.S.S.A. “cap,” even though the couple’s combined family income substantially exceeded that amount (the wife estimated the husband’s income at $600,000).Continue Reading Crediting Child Support With Payments for College Expenses

What is a “mandatory” college expense to be shared by the parents?

In its January 15, 2014 decision in Shaughnessy v. Cox, the Second Department upheld the order of Nassau County Family Court Judge Robin M. Kent (which in turn upheld the determination of Support Magistrate Neil Miller) directing the father to pay 50% of the college expenses of the parties’ children regardless of their emancipation. The parties’ stipulation of settlement of their divorce action so provided. Moreover, the father’s obligation included the repayment of expenses which were paid from the proceeds of student loans.

However, Magistrate Miller had required the father to pay those expenses “upon the mother’s presentation of proper documentation directly to him . . . .” This, the Second Department held was error. Rather, the documentation should be provided by the mother first to the Family Court. The Court would determine whether the expenses were mandatory and, therefore, payable by the father pursuant to the parties’ agreement.

Setting up a situation in which parties are required to go, in the first instance, to a court to determine whether a college expense is “mandatory,” seems like extra work is being created. Here, it is not explained why the mother did not present proper documentation of expenses prior to Magistrate Miller making his ruling. Alternatively, the appellate court could have set up a procedure by which only if the father disputed the mandatory nature of expenses claimed by the mother would further Family Court proceedings be necessary.

Once again, the controversy results from the failure of an agreement to properly set forth the categories of college expenses to be shared. Apparently this agreement only specified “mandatory” expenses.Continue Reading Ambiguous Agreements to Pay for Children's College Expenses