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
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
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
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
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
- Whether parents will contribute towards extra costs. For
example, a vehicle for the student and school supplies, such as a
- Whether the child is required to enroll as a full-time
- Whether there is an expectation that the child will reside on
- 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.