Mediating College Education Expenses & Divorce

College education expenses continue to skyrocket annually in the U.S. Higher education debt and exorbitant housing costs combined force more young adults to live in childhood homes with their parents. When the parents divorce, experienced family law attorneys and probate judges help spouses tackle the issue of who will finance their children’s post-secondary education.

Consider this scenario. Harry and Irene are divorcing after 25 years of marriage. They have two sons living in the marital home. Joe, 21, is a senior at Bennington College. Ken, 16, is a high school sophomore.

Harry unilaterally reduced his child support payments to Irene on the day Joe turned 21. Irene’s divorce lawyer is pursuing a contempt action against Harry.

Child Support for Twentysomethings

Probate judges by statute can issue a support order covering a dependent child, age 21 up to age 23, living with a parent. The adult child must be principally reliant on that parent for maintenance because of his or her enrollment in an undergraduate education program.  The Massachusetts Child Support Guidelines do not presume that parents must contribute to their children’s post-secondary school costs. Rather, a probate judge has discretion to order, or decline to order, a parent to contribute.

Judicial Discretion

Financial aid availability, the parents’ and child’s resources, and the child’s living situation are among factors the court will consider under the Guidelines before ordering parents to contribute to college education expenses. The court also examines each parent’s involvement in the child’s well-being. Finally, indirect expenses incurred by the custodial parent to house the adult child, like mortgage, insurance, and utilities, are examined. That a child resides with one parent does not alone prove dependency on that parent. Under the Guidelines, neither Harry nor Irene could be required to pay more than 50 percent of the in-state resident cost of U.Mass.-Amherst unless a judge makes written findings that one of them could afford to pay a greater share.

Harry cutback on his child support payments to Irene because he considered Joe emancipated when he turned 21. Moreover, he argued that he had no input into Joe’s decision to attend Bennington College where tuition and room & board exceed $70,000. Unfortunately for Harry, he made two missteps.

Harry’s Missteps

In the Larson case, the Massachusetts Appeals Court upheld a contempt order against a noncustodial father who stopped paying child support when his dependent son, who was living with his mom, turned 21. The Court in an earlier case ruled against the father when he ceased paying maintenance when his son turned 18. Massachusetts law does not automatically emancipate a child when he or she attains  the age of majority. In fact, in another case where a parent stopped paying child support when his son joined ROTC while a college junior, the court ruled emancipation didn’t occur. The father’s support obligation didn’t end until the young man graduated from college and his stint in the military began.

Harry’s claim that he had no say in Joe selecting a pricey college also fails. Unless the couple’s separation agreement explicitly makes Harry’s and Irene’s obligation to contribute to Joe’s college education expenses contingent on their being part of the college selection process, the probate court has authority to order payment of post-secondary school education costs, according to a Massachusetts appellate decision.

Future Education Costs

Whether a probate judge can modify Harry and Irene’s divorce judgment to boost child support to cover Ken’s future college education expenses is a trickier issue. Massachusetts law tends to view support orders about future post-high school education costs as premature. Instead, a support order’s focus is on the child’s current needs. Special circumstances allow for exceptions to the rule. This includes if a parent has a history of shirking responsibility for his or her child’s maintenance. Also, let’s say for example that Irene has a history of wasteful spending. According to one Massachusetts case, the court could compel her to create an educational trust. This would be for Ken’s possible undergraduate education costs even though he is not yet 18.

In certain instances, the need to pay higher education expenses can justify a probate judge modifying a divorce judgment because of a statutory “material change in circumstances.” Still, if Irene footed the bill for Joe’s four years at Bennington and waited until his graduation to seek a court order for Harry to contribute to the college expenses, the court unlikely would reward her undue delay.

The Family Lawyer’s Role

Henry and Irene’s divorce attorneys play an important role. He ensures the couple’s settlement agreement explicitly addresses issues such as financial obligations for college education costs. Say Harry’s divorce lawyer negotiated a settlement agreement that imposed no age limit on Harry’s obligation. Then, the probate court can order Harry to continue making such payments beyond the boys’ twenty-first birthday. The parties and their attorneys may neglect to address payment of college expenses in the settlement agreement. In that case, the probate court has broad latitude to impose that obligation on parents.

From a fairness standpoint, it doesn’t seem proper that a court can compel divorced parents to pay children’s college expenses. Married parents cannot be forced to send their kids to college. The grim reality, given spiraling tuition costs, is that all but the wealthiest parents are hard-pressed to finance their children’s post-secondary schooling.

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Interested in learning more about mediation? Check out our article on mediating child custody disputes.