June 2, 2024
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Drafting Marital Settlement Agreements to Ensure Payment for Gap Year in Israel

New Jersey is among the minority of states requiring divorced parents to pay for college tuition on behalf of their children. While there are many criticisms of this particular law – including the disparate treatment between requiring payment from divorced parents but not from those who remain married – there are aspects of this law that make a lot of sense, especially when viewing what happens when individuals are under no obligation to pay, as in the context of the gap year in Israel.

A gap year in Israel is customary for many in Orthodox Jewish communities, where a child finishing high school goes on to learn in yeshiva or seminary in the year immediately after he or she finishes high school. In some communities, the expectation is that the child will then go on to college, but in others, the gap year is considered of equal importance to college, and a college education may or may not follow. Sometimes, a child and/or parents will opt for the child to remain in Israel for two years, or more, depending on the priorities of the family.

A lot of planning and option weighing goes into the selection of a yeshiva or seminary, with critical importance sometimes placed on the choice. Jewish high schools are typically heavily involved in the process as well, and children start thinking about the right choice for them early in their high school careers.

However, in divorced families, this decision can be divisive. More divisive, however, can be the discussion of who pays for it and in what proportion.

Because the gap year in Israel is not college (with only limited universities, including Yeshiva University and Touro College, providing college credit for the classes taken), parents are not obligated, under New Jersey law, to pay a child’s tuition for this year, which could amount to tens of thousands of dollars between tuition and other expenses. Accordingly, payment for the gap year in Israel must be done by mutual agreement of the two parties.

New Jersey attorneys, if not alerted to this issue, may not automatically include a provision in divorce settlement agreements providing for its division as they would if college were on the horizon. This could lead to disputes down the line, in spite of the fact that the expense tends to be as important and anticipated for children in the Jewish world as it is for children to attend college in the secular world.

The position of the parent opposing payment tends to be that (1) he/she does not agree to the selection of gap year school; (2) he/she does not agree to the concept in general, even though the children were raised with the expectation; or (3) he/she is not required to pay in any event.

And technically, the objecting parent would not be wrong: There is no requirement for anybody to pay for a gap year in Israel written anywhere into New Jersey law. This is especially so if the child is not earning any college credit or pursuing a college education thereafter. In that event, there would not even be a colorable argument in favor of requiring the other parent to pay, and likely the child would be deemed emancipated if not moving forward with post-secondary education.

This type of dispute, if unresolved by mutual agreement, may result in one parent carrying the entire expense; typically, it is the custodial parent who may be in a more precarious financial position than the other parent.

Of course, the imbalance of such an outcome is self-evident. This was, after all, a mutual expectation during the marriage, and now that the parents are divorced, it provides one party with a unilateral ability to deny a child this opportunity and/or create an unreasonable financial burden on the other parent.

As a result, it is imperative that a provision regarding payment for the gap year in Israel be included in a divorce settlement agreement if it is a priority for your family.

Below is an example of a gap year provision that can be included in a divorce agreement:

  1. The parties agree that their children may take one (1) gap year in Israel, between graduating from high school and commencing their post-secondary education. In such an event, the parties agree to share their children’s agreed-upon, out-of-pocket gap year expenses after first excusing all scholarships and financial aid. The Husband agrees to be responsible for payment of seventy-five (75%) percent and the Wife agrees to be responsible for payment of twenty-five (25%) percent of each child’s gap year in Israel.
  2. In the event a child wishes to spend more than one (1) gap year in Israel, the parties agree to discuss a second year at such time it becomes relevant, with a requirement for the child to defray the cost of such year through employment as a dormitory counselor or equivalent position within the desired gap year program. In no circumstance shall either party be financially obligated to financially contribute beyond a second gap year in Israel.
  3. The parties shall discuss and agree upon their children’s choice of gap year program during his/her junior year of high school. Gap year expenses shall be defined as tuition; dormitory room; board and meal plan; required fees; books and other supplies, accessories or gear needed for classes and/or off-campus school trips; and agreed-upon application fees.

The above is just one example of a potential gap year provision, but it can and should be tailored to account for a family’s particular circumstances.

As always, if you have questions regarding these provisions, be sure to consult with a New Jersey attorney.

Eliana T. Baer is a partner in the Family Law Practice Group of Fox Rothschild LLP, representing clients statewide in divorce, asset distribution, support, custody, domestic violence, premarital agreements, and Appellate Practice. Eliana has been selected to the Best Lawyers in America (2024), JD Supra’s Readers Choice Award for Family Law (2024), Super Lawyers – Rising Stars (2014-2024), New Leaders to the Bar by the New Jersey Law Journal (2018), “Top 10 Under 40” list by the National Academy of Family Law Attorneys (2017), and “Trailblazers” list in Divorce Law (2016)*. Eliana appears in both civil and rabbinical court. You can reach Eliana at (609) 895-3344, or [email protected].

*Award methodology available at https://www.foxrothschild.com/eliana-baer/honors-awards.


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