Anticipating the Obligation to Pay College Expenses

In determining whether to order a parent to pay post-secondary educational expenses, courts generally will consider several factors. First, the parent's ability to provide the support must be established. Second, there is usually an inquiry concerning the child's ability and capacity for college work. Finally, and in some states most significantly, an assessment will be made of the likelihood that such expenses would have been paid had the marriage stayed intact. This may include evidence of the parent's educational background, including the type of college the parent attended.

Challenges Based on Equal Protection

Because no state requires married parents to pay for their children's post-secondary education, the imposition of this obligation has angered some divorced parents who argue that it is unfair to require them to provide support that their married counterparts are not required to provide. Not surprisingly, then, most of the challenges to the laws that allow for the imposition of post-majority educational support are based on equal-protection grounds.

The majority of courts that have considered these claims have upheld the statutes, determining that the appropriate constitutional analysis requires a finding that the statutes are rationally related to a legitimate state purpose. In most cases, this legitimate state purpose has been defined as minimizing the disadvantages that children experience as a result of the divorce of their parents. Implicit in these holdings is the assumption that children from divorced families need greater protection from the state. Some decisions focus on the principle that children should not unduly suffer because of the actions of their parents and rely heavily on the assumption that, but for the divorce, the child would have been provided a college education.

Drafting Considerations

While some parents are required by courts to pay college expenses, the vast majority of parents who provide such support do so voluntarily by written agreement. But with college costs soaring and parents worrying about whether they will be able to send their children to school, planning for college costs creates challenges for matrimonial attorneys who are asked to draft these agreements. Imagine the problems for lawyers who represent parents of a very young child who will not be finished with high school for another 15 years.

How does one anticipate what college will cost? Is it advisable to settle for a broad clause that merely states that parents will pay “as each is financially able, according to his or her income reported in the last tax return?” Is it a good idea to set a “cap” and indicate that the payor parent will not pay expenses that exceed the cost of tuition at a state university? If the child is very young, is it possible that state university costs in 10 or 15 years will grow so rapidly that capping costs in such a fashion will not protect your client.

Which expenses will be covered?

Agreements involving future child support payments should carefully consider college (or post-secondary school) expenses and should be detailed. For instance, “college costs” should be clearly defined. Such costs may cover simply tuition, room and board; however, other expenses, such as activity fees, books, allowances, a computer, auto insurance (if the child will have access to a vehicle) and transportation costs at vacation, should also be considered. While some clients may be satisfied with a listing that begins with “including but not limited to …” the payor parent must be advised of the danger of exposing him- or herself to the obligation of assuming unforeseen costs.

Limiting the amount to the costs of a public institution

Furthermore, the payor parent may want to limit the amount to that which will cover costs at a public, as opposed to a more expensive private, institution. One means of doing so is by including a clause that states that “the parent will be obligated to pay tuition and room and board in an amount not to exceed that being charged by the University of – at the time the child will be attending college.” Most importantly, some courts require a specific amount or one that can be clearly ascertained in order to enforce the amount as a child support judgment.

If the child is very young at the time of the divorce

If the child is very young, parents may want to simply include a clause that states that both parents acknowledge the importance of a college education but that neither parent can predict his or her future financial ability to pay. They may further wish to agree to work with the child and meet to discuss college choices and the allocation of costs when college is imminent. This type of open-ended agreement poses risks for the custodial parent who will most likely have to bear the burden of the majority of the costs if the parties are unable to agree when the time for college arrives. It may be better to encourage the parents to agree that they will be responsible for costs at a certain level, such as a percentage of their then-current income. They may also want to agree to contribute in a proportion that reflects anticipated differences in income.

The type of program the child will attend

Another consideration is the type of program the child will attend. Using the term “college” may be too narrow. Parents may want to consider a broader definition of post-secondary education that may include a technical or other specialized school.

A time-or other-limitation

In addition, the parents may also want to consider whether to include a time limitation. For instance, will the child be entitled to support until a degree or certification is completed, regardless of the number of years it takes, or is the parent only undertaking an obligation to pay for four continuous years of full-time enrollment. What happens if a child does not start college immediately after concluding high school? Parents may wish to consider a temporal limit that provides for support within a given time frame. A child heading back to school after a period of employment is not an unusual circumstance, nor is it unusual for a child to leave school for a short period of time and then return. Both circumstances should be considered in negotiating and drafting a separation agreement. Other limitations may include the maintenance of a certain grade-point average and enrollment for a minimum number of credit hours.

A possible reduction in the support obligation

In those states where the age of majority is above 18, a question arises concerning what happens to the basic support obligation when the child is in college and the non-custodial parent, pursuant to a written agreement, is paying expenses. To the extent that the noncustodial parent is paying for the room and board of the child, some reduction in support payable to the custodial parent should be in order. Any reduction, however, should take into consideration that the primary custodial parent still has not only fixed costs (eg, keeping the child's room) but also direct expenses when the child is physically present.

Scholarships and other financial aid

Another factor that should be considered is the availability of scholarships and other financial aid. Parents who obligate themselves to pay the expenses may want to stipulate that the student will apply for financial aid and that the payor parent will only be required to cover the costs not covered by scholarships or grants. Because of the low interest rate associated with student loans, parents may want to encourage the student to borrow some of the money, with a provision that obligates the parent to assist with the repayment of the loans.

Strained relationship with child

Some parents who have previously agreed to pay college costs may find that with the passage of time, the relationship with the child who is now ready for college has become very strained; in fact, there may be no relationship with the child. An absence of a relationship through no fault of the payor parent may provide a defense to a court order to pay college expenses as child support. However, it is unlikely that a court will allow a parent to escape a contractual duty to support, absent some language in the agreement that provides for that contingency.

Taking advantage of college savings plans

Finally, some clients may wish to take advantage of the favorable tax treatment accorded college savings plans. The parents could obligate themselves to contribute a certain amount per month to a plan that would then be applied to the costs of post-secondary education.

Given the current economic realities, including layoffs, downsizing and the ever-escalating costs of college, many parents are justifiably concerned about providing a college education for their children. With careful planning, the attorney should be able to assist them in devising a plan that will both help the children and protect the client's economic interest.

In contemporary American society, a college education is increasingly being seen as necessary to maintaining a decent standard of living. While many parents assume some responsibility for contributing to their child's post-secondary educational expenses, the situation for divorced parents is more complex. This article discusses several points related to this issue. First, under what circumstance may a court order a divorced parent to pay for the college expenses of his or her child? Second, if a parent agrees to provide such support, what are the practical considerations that should be addressed in the agreement?

A Question of State Law

Whether or not a court can impose an obligation to pay college expenses upon a divorced parent depends on state law. Approximately one-third of the states have case law or statutes that provide for the imposition of such expenses upon a divorced parent. States have utilized several methods to accomplish this end. In some states, it has been held that a court can exercise its equitable powers to provide for support of a child beyond the age of majority and that college expenses can be included as a part of the child-support obligation. Several states have specific statutory provisions that allow for the imposition of post-majority education subsidy for “good cause” or “where deemed appropriate.”

In determining whether to order a parent to pay post-secondary educational expenses, courts generally will consider several factors. First, the parent's ability to provide the support must be established. Second, there is usually an inquiry concerning the child's ability and capacity for college work. Finally, and in some states most significantly, an assessment will be made of the likelihood that such expenses would have been paid had the marriage stayed intact. This may include evidence of the parent's educational background, including the type of college the parent attended.

Challenges Based on Equal Protection

Because no state requires married parents to pay for their children's post-secondary education, the imposition of this obligation has angered some divorced parents who argue that it is unfair to require them to provide support that their married counterparts are not required to provide. Not surprisingly, then, most of the challenges to the laws that allow for the imposition of post-majority educational support are based on equal-protection grounds.

The majority of courts that have considered these claims have upheld the statutes, determining that the appropriate constitutional analysis requires a finding that the statutes are rationally related to a legitimate state purpose. In most cases, this legitimate state purpose has been defined as minimizing the disadvantages that children experience as a result of the divorce of their parents. Implicit in these holdings is the assumption that children from divorced families need greater protection from the state. Some decisions focus on the principle that children should not unduly suffer because of the actions of their parents and rely heavily on the assumption that, but for the divorce, the child would have been provided a college education.

Drafting Considerations

While some parents are required by courts to pay college expenses, the vast majority of parents who provide such support do so voluntarily by written agreement. But with college costs soaring and parents worrying about whether they will be able to send their children to school, planning for college costs creates challenges for matrimonial attorneys who are asked to draft these agreements. Imagine the problems for lawyers who represent parents of a very young child who will not be finished with high school for another 15 years.

How does one anticipate what college will cost? Is it advisable to settle for a broad clause that merely states that parents will pay “as each is financially able, according to his or her income reported in the last tax return?” Is it a good idea to set a “cap” and indicate that the payor parent will not pay expenses that exceed the cost of tuition at a state university? If the child is very young, is it possible that state university costs in 10 or 15 years will grow so rapidly that capping costs in such a fashion will not protect your client.

Which expenses will be covered?

Agreements involving future child support payments should carefully consider college (or post-secondary school) expenses and should be detailed. For instance, “college costs” should be clearly defined. Such costs may cover simply tuition, room and board; however, other expenses, such as activity fees, books, allowances, a computer, auto insurance (if the child will have access to a vehicle) and transportation costs at vacation, should also be considered. While some clients may be satisfied with a listing that begins with “including but not limited to …” the payor parent must be advised of the danger of exposing him- or herself to the obligation of assuming unforeseen costs.

Limiting the amount to the costs of a public institution

Furthermore, the payor parent may want to limit the amount to that which will cover costs at a public, as opposed to a more expensive private, institution. One means of doing so is by including a clause that states that “the parent will be obligated to pay tuition and room and board in an amount not to exceed that being charged by the University of – at the time the child will be attending college.” Most importantly, some courts require a specific amount or one that can be clearly ascertained in order to enforce the amount as a child support judgment.

If the child is very young at the time of the divorce

If the child is very young, parents may want to simply include a clause that states that both parents acknowledge the importance of a college education but that neither parent can predict his or her future financial ability to pay. They may further wish to agree to work with the child and meet to discuss college choices and the allocation of costs when college is imminent. This type of open-ended agreement poses risks for the custodial parent who will most likely have to bear the burden of the majority of the costs if the parties are unable to agree when the time for college arrives. It may be better to encourage the parents to agree that they will be responsible for costs at a certain level, such as a percentage of their then-current income. They may also want to agree to contribute in a proportion that reflects anticipated differences in income.

The type of program the child will attend

Another consideration is the type of program the child will attend. Using the term “college” may be too narrow. Parents may want to consider a broader definition of post-secondary education that may include a technical or other specialized school.

A time-or other-limitation

In addition, the parents may also want to consider whether to include a time limitation. For instance, will the child be entitled to support until a degree or certification is completed, regardless of the number of years it takes, or is the parent only undertaking an obligation to pay for four continuous years of full-time enrollment. What happens if a child does not start college immediately after concluding high school? Parents may wish to consider a temporal limit that provides for support within a given time frame. A child heading back to school after a period of employment is not an unusual circumstance, nor is it unusual for a child to leave school for a short period of time and then return. Both circumstances should be considered in negotiating and drafting a separation agreement. Other limitations may include the maintenance of a certain grade-point average and enrollment for a minimum number of credit hours.

A possible reduction in the support obligation

In those states where the age of majority is above 18, a question arises concerning what happens to the basic support obligation when the child is in college and the non-custodial parent, pursuant to a written agreement, is paying expenses. To the extent that the noncustodial parent is paying for the room and board of the child, some reduction in support payable to the custodial parent should be in order. Any reduction, however, should take into consideration that the primary custodial parent still has not only fixed costs (eg, keeping the child's room) but also direct expenses when the child is physically present.

Scholarships and other financial aid

Another factor that should be considered is the availability of scholarships and other financial aid. Parents who obligate themselves to pay the expenses may want to stipulate that the student will apply for financial aid and that the payor parent will only be required to cover the costs not covered by scholarships or grants. Because of the low interest rate associated with student loans, parents may want to encourage the student to borrow some of the money, with a provision that obligates the parent to assist with the repayment of the loans.

Strained relationship with child

Some parents who have previously agreed to pay college costs may find that with the passage of time, the relationship with the child who is now ready for college has become very strained; in fact, there may be no relationship with the child. An absence of a relationship through no fault of the payor parent may provide a defense to a court order to pay college expenses as child support. However, it is unlikely that a court will allow a parent to escape a contractual duty to support, absent some language in the agreement that provides for that contingency.

Taking advantage of college savings plans

Finally, some clients may wish to take advantage of the favorable tax treatment accorded college savings plans. The parents could obligate themselves to contribute a certain amount per month to a plan that would then be applied to the costs of post-secondary education.

Given the current economic realities, including layoffs, downsizing and the ever-escalating costs of college, many parents are justifiably concerned about providing a college education for their children. With careful planning, the attorney should be able to assist them in devising a plan that will both help the children and protect the client's economic interest.