College Expenses: How are these handled in a divorce?
Thursday, June 25th, 2009
For all divorces on or after July 1st, 1997, the Court will not require that the parties pay college expenses. Child support will continue until 19 years of age. At 19 the child is considered emancipated and the party paying child support can petition the court to end child support payments.
However, divorcing parents can agree to pay for college expenses as part of their separation agreement and final decree. Once the Court orders incorporate the agreement for college expenses that agreement becomes a legal judgement and can be enforced as a Court Order. In other words, if the expenses are not paid the party withholding payment can be brought up on contempt of court charges for not doing so. This is a much heavier penalty that just a mere breach of contract. The Court has broad powers to enforce a Court Order.
It is important to note that any agreement for support of the child (including an agreement to pay college expenses) can be modified by the Court. The party agreeing to pay college expenses can later come back to the Court and argue that there has been a substantial and continuing change in circumstances from the time that the agreement was made. If they can prove this to the Court, the Court has the power to adjust the amount of the payment in consideration of the change in circumstances.
For divorces that were final before July 1st, 1997, there may be a Court imposed requirement for parents to pay reasonable college expenses up to the age of 21. However, the Court cannot order that a parent pay more for these educational expenses than he or she would be required to pay for child support. The Court will not require both child support and college expenses. It is only one or the other. The Court Order for payment of reasonable college expenses can be modified the same way child support may be modified; on a showing of substantial and continuing changed circumstances by the party seeking the modification.
In Conclusion, it does not matter whether the requirement to pay college expenses is Court ordered (prior to 1997) or if it is by agreement and incorporated into the divorce decree (after 1997), in both cases the agreement/requirement to pay college expenses can be modified if there is a substantial and continuing change in circumstances of the party seeking the modification. What constitutes a substantial and continuing change is a question of fact to be argued before the court.
However, divorcing parents can agree to pay for college expenses as part of their separation agreement and final decree. Once the Court orders incorporate the agreement for college expenses that agreement becomes a legal judgement and can be enforced as a Court Order. In other words, if the expenses are not paid the party withholding payment can be brought up on contempt of court charges for not doing so. This is a much heavier penalty that just a mere breach of contract. The Court has broad powers to enforce a Court Order.
It is important to note that any agreement for support of the child (including an agreement to pay college expenses) can be modified by the Court. The party agreeing to pay college expenses can later come back to the Court and argue that there has been a substantial and continuing change in circumstances from the time that the agreement was made. If they can prove this to the Court, the Court has the power to adjust the amount of the payment in consideration of the change in circumstances.
For divorces that were final before July 1st, 1997, there may be a Court imposed requirement for parents to pay reasonable college expenses up to the age of 21. However, the Court cannot order that a parent pay more for these educational expenses than he or she would be required to pay for child support. The Court will not require both child support and college expenses. It is only one or the other. The Court Order for payment of reasonable college expenses can be modified the same way child support may be modified; on a showing of substantial and continuing changed circumstances by the party seeking the modification.
In Conclusion, it does not matter whether the requirement to pay college expenses is Court ordered (prior to 1997) or if it is by agreement and incorporated into the divorce decree (after 1997), in both cases the agreement/requirement to pay college expenses can be modified if there is a substantial and continuing change in circumstances of the party seeking the modification. What constitutes a substantial and continuing change is a question of fact to be argued before the court.
