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March 9, 2014
My friend Mark Goldstein, who is an employment lawyer, forwarded to me an article in the ABA Journal about a New Jersey court ordering a Rutgers University history professor to pay up half the cost of his daughter’s education at Cornell Law School, which costs about $112,500.
According to the article, the divorce agreement did not include a provision which would have given the father the right to participate in school selection. The court held:
If a relationship and a voice in the planning and selection of a school were his expectations, such terms could and should have been included in the agreement. They were not.
In some states, the court has authority to order parents to contribute to post education expenses. Apparently in New Jersey, this can only be ordered if the parties agree – or in other words, the court can only enforce an agreement.
That is exactly the law in Wisconsin. Avoiding what happened in this case would be easy – a good agreement limits the exposure for these costs, frequently for example, putting a cap of the costs at UW- Madison or, as the court noted in this case, requiring the parents to consent to the choice of school.
A more interesting issue is the broader question – should a court have authority to order a parent to pay for post high school expenses if the child has the need and the parent has the ability to pay? There are pros and cons.
The biggest pro is that if the needs of the child and the ability of the parent both exist, the child should not suffer due to the divorce of his and her parents. In this case, the daughter is apparently estranged from her father. While that can (and does) happen in intact families, I would guess that it happens far more ofter when the parents divorce.
The biggest con is the likelihood of litigation. Giving a court the power to make this order can easily lead to parents fighting over it and sometimes litigating it. As I previously stated in this blog (and elsewhere), parents fighting is inimically bad for children.
Still, I think the existence of the authority would lead to settlement once the proclivities of courts become known. And I suspect most courts would, in the appropriate case, order such a contribution.
This is a moot argument, unfortunately. There are no proposals to change Wisconsin law – and to my knowledge, never have any ever been introduced. Pity. The needs of children do not end with high school and to have a child graduate with huge amounts of student debt would be a shame, if it is avoidable.