Allocating college education expenses in divorce

Issue May 2015 By Katherine E. McCarthy

The cost of college continues to skyrocket with no end in sight. Sending a child to college is now one of the most costly expenses that a family will undertake. Planning for and paying for college becomes even more complicated for divorcing parents.

Massachusetts Probate and Family Court judges have been confronted with issues concerning the allocation of college education expenses with growing frequency, in large part due to the seemingly ever-increasing cost of college and the growing acceptance of college as a necessity to future economic independence. Not surprisingly, divorcing parents are often anxious about how to pay for the future cost of college, especially when it coincides with the expenses of maintaining a second household.

Interplay with child support

Before the issue of college expenses is discussed in detail, it is important to address the related issue of child support. One question divorcing or divorced parents often have when it comes to paying for college is how the allocation of college costs will affect their child support order. It is possible that the court will modify the amount of child support a parent is paying if that parent begins contributing towards college, but modification is not automatic, nor is it presumptive.

Under Massachusetts law, child support can continue until a child reaches the age of 23 if the child is enrolled in an educational program, domiciled at home with one parent and is principally dependent on the parent for support. A child is considered to be domiciled with one parent even if the child lives on a college campus for the academic year.

In August 2013, Massachusetts adopted new child support guidelines. The guidelines provide factors that the court may consider in determining child support orders for children over age 18. The factors include the available resources of the parents, the cost of post-secondary education for the child, the availability of financial aid and the allocation of college costs, if any, between the parents.

In addition to child support, a court can order that parents contribute towards their children's college expenses. There is no bright line rule, and the court's decision is based on the same factors as those listed above. If such an order is made, it should be considered by the judge in setting the weekly child support order, if any. In sum, it is possible that the court will modify the amount of child support a parent is paying if that parent begins contributing towards college, but modification is not automatic, and the overall result will most certainly be an increase in the cost to the payor when the two expenses are combined.

Allocation of college expenses by court order

When divorcing or divorced parents disagree as to the allocation of responsibility for payment of college costs, they have the option of asking the court to determine and order the allocation. While the court does have the discretion to order the allocation of college costs between parents, such discretion must be exercised within boundaries. Case law has developed, which states that only under limited circumstances may a judge order future college expenses where children are not approaching college age. The courts have stated that child support orders are meant to address current and not future needs of children. Therefore, it is not permissible for judges to look too far ahead when ordering the allocation of college expenses.

There are some very limited circumstances where a judge may permissibly order the allocation of future educational expenses when the child is still young. Such circumstances include situations where the parents are profligate or a child has special needs. Otherwise, divorcing parents who cannot agree as to the allocation of college costs must wait until the child is approaching college age and then seek the court's assistance in allocating college expenses.

Despite the fact that courts have discretion to order divorcing parents to contribute to college expenses, many judges limit contribution. For example, a judge may order that a parent pay a percentage based on the cost of tuition, fees and expenses for a residential University of Massachusetts student, despite the fact that the child may be attending a more expensive private institution.

Parents should also be wary of waiting until after a child is attending college to bring an action requesting that the other parent contribute. Massachusetts courts have been very hesitant to order a parent to pay for college after the fact, especially when that parent did not have the opportunity to be part of the college decision making process. It is important to address these issues prior to the child's graduation from high school.

Allocation of college expenses by agreement: Drafting tips

Some divorcing or divorced parents address the issue of college expenses by agreement. In order to avoid future conflict, divorcing parents and their attorneys should consider and address multiple factors when drafting college expense provisions in a separation agreement, such as:

  • Whether the child will attend a private or public college.
  • Whether any of the tuition and fees will be the responsibility of the child.
  • Whether the obligation of the parent paying child support will be reduced when the child begins college in consideration of that parent's contribution towards college expenses.
  • Whether standardized tests, like the SATs and ACTs, will be covered by a parent's contribution towards college expenses.
  • Whether parents cover the cost of college visits, and if so, whether the number of visits should be limited.
  • Whether parents will cover application fees, and if so, whether the number of applications should be limited.
  • Whether parents will cover the cost of second visits after acceptance.
  • Whether parents will contribute towards extra costs. For example, a vehicle for the student and school supplies, such as a computer.
  • Whether the child is required to enroll as a full-time student.
  • Whether there is an expectation that the child will reside on campus.
  • The educational institutions should also be defined, and the agreement should make clear whether "vocational" programs will qualify, as well as study abroad programs.
  • Whether one or both of the parents will be responsible for meeting with third parties to assist in the process, such as a guidance counselor or college advisor.
  • Clarification as to the manner in which information on college searches will be shared between the parents and child, and whether both parents will be granted access to the child's academic records once in college as a condition of their obligation to pay.
  • Identification of the parent responsible for completing financial aid forms and applications.
  • Whether a parent's obligation to contribute to college expenses will continue if the child has poor academic performance.

In sum, addressing the issue of college expenses by agreement is advisable whenever possible. If divorcing parents address the issue in their separation agreement, they should take care to include sufficient detail outlining the college search process and costs that will be covered in order to avoid future litigation or at least plan to engage in the discussion early in the child's high school years. The cost of college is expensive enough, and if parents add the cost of litigation on top of the college expense, they can find themselves depleting what might have been one or two years of the equivalent of college expenses just seeking a judge's determination as to who will pay. When it comes to the high cost of college, the devil is in the planning and the detail.