By Colleen Honquest
A college education is necessary for a child, and financially-capable parents should help to fulfill this need by contributing to its cost.
Courts have long held that a college education is necessary for a child, and that financially capable parents should fulfill this need by contributing to the cost of a wide range of college-related expenses including, but not limited to: tuition, room and board, books, and mandatory fees. As a result, and in a manner akin to child support, parents cannot bargain away the obligation to provide for a child’s college education during divorce proceedings.
In determining how much each parent should pay for college, Family Judges generally reason that neither parent will be expected to contribute more to the cost than he or she can reasonably afford. Notably, in some states, the law no longer limits or caps a parent’s mandatory contribution to the cost of a child attending an in-state public college. Thus, requiring parents to contribute the full amount of an out-of-state college or private university will not necessarily be prohibited. Rather, as in many areas of family law, each situation will be analyzed on its own specific set of facts and circumstances.
Specifically, a court will analyze several relevant factors that focus on the subject family’s dynamic and financial circumstances. These factors include:
- The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education;
- The amount of the contribution sought by the child for the cost of higher education; (Example 30% Mother, 30% Father, 30% Child)
- The ability of the parent(s) to pay that cost;
- The relationship of the requested contribution to the kind of school or course of study sought by the child;
- The financial resources of both parents;
- The commitment to and aptitude of the child for the requested education;
- The financial resources of the child, including assets owned individually or held in custodianship or trust;
- The ability of the child to earn income during the school year or on vacation;
- The availability of financial aid in the form of college grants and loans;
- The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
- The relationship of the education requested to any prior training and to the overall long-range goals of the child.
The issue of college contributions can be determined at the time of the divorce or, especially if the child is of a younger age and/or the future holds a degree of financial uncertainty, it can remain an open issue to be determined when college is set to commence. It is always best to write a clear Marital Settlement Agreement that addresses college education costs for your child(ren) now and avoid returning to court again later. Agreements often provide what specific expenses will be covered and what percentage of contribution each parent will provide. You can ask that each parent contribute 30% and that your child contributes 30%. It is a good idea to have your child responsible for some of the cost as this gives them «skin in the game». Your agreement should also address how existing college accounts (such as a 529 account) will be utilized and/or established in connection with this issue.
If parties are unable to reach an agreement and the matter proceeds to litigation, a court will generally order the exchange of relevant information, including, but not limited to: extensive financial disclosures, and subsequently hold a trial during which the judge will hear testimony and review evidence in order to reach a final determination. If college has already commenced and payments have been made in connection therewith, a parent can be required to contribute on a retroactive basis.
The issue of how to handle college expenses should be well thought out and addressed in your Marital Settlement Agreement or Divorce Decree at the time of divorce. Better to iron out all of the details before you are divorced so that you don’t have to return to court to re-litigate the issue later while spending even more money.
Colleen Honquest, Divorce Mediator and Certified Divorce Coach
Founder, DivorceMD, LLC.