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Jul 10, 2020 | Family Law

Part two: College contribution and expenses for divorced and separated parents

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Can I be ordered to contribute to my child’s college education expenses? Can I ask the Courts to order my ex to contribute to our child’s college education?

It is common knowledge that college expenses have skyrocketed over the last 50 years and that a college education may not be economically possible for many. Financing college when parents no longer live together has its own set of challenges and difficulties. There may be fewer resources available to pay for college as the parents must support two separate households. Additionally, opinions may differ when it comes to choice of college, parental financial support for college, and contribution from the child.

In order to help resolve these issues, the Massachusetts legislature gave authority to the courts to allocate college costs between divorced/never married parents. Under Massachusetts law, the Court has discretion either to order, or to decline to order, a parent to contribute to college expenses.  Pursuant to M.G.L c. 208, § 28 & c.209C § 9:

“The court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.”

What do Courts consider when ordering college expenses?

In Mandel v. Mandel (2009), the Court outlined the variety of factors that the Court may consider when ordering a parent to contribute to college expenses:

  • the financial resources of both parents;
  • the standard of living the child would have enjoyed if the marriage had not been dissolved;
  • the financial resources of the child;
  • the cost of the school;
  • the programs offered at the school;
  • the child’s scholastic aptitude;
  • how the school meets the child’s goals; and
  • the benefits the child will receive from attending the school

The 2017 Massachusetts Child Support Guidelines add that when ordering a parent to contribute to college expenses, the Court should also consider the availability of financial aid. For a discussion on applying for financial aid when parents are not together check out our prior blog article HERE.

When should a parent request that the Court order College Contribution from the other?

Generally, “support orders regarding the future payment of post-high school educational costs are premature and should not be made.” Passemato v. Passemato (1998). For example, the Massachusetts Appeals Court has even found that age fifteen (15) was too young to issue an order regarding future college expenses. Lang v. Koon (2004).  Recently, in 2016, an unpublished Appeals Court decision held that a court cannot enter orders that obligate a party to contribute to a child’s college expenses until the “child is already attending or is about to attend college”. Kurtin v. Kurtin (2016)  In other words, parents need to be reasonably certain both where the child will attend, and how much it will cost.  And it won’t be enough to obtain an order for one child; if you have multiple children, you will need to re-visit the question as each child reaches college age.

Before you seek court intervention, be sure that you have engaged in meaningful dialogue about where the child will attend.  “Also of importance in the inquiry over allocation of college expenses is “the extent to which [a party] unjustifiably may have been excluded from the [college] decision-making process. Hamilton v. Pappalardo (1997). Conversely, a party who sat on his or her right to intervene, or to seek approval from the court when the parties disagree, until the college selection process has been completed, may have waived his or her right to object to the college and its concomitant cost.” Mandel v. Mandel (2009).

This also presents the question of whether one can request reimbursement for past expenses paid for college.   In Purdy v. Colangelo, (2004), the appeals court held that where a parties’ earlier agreement was silent on the issue of payment of college expenses and neither party had sought modification, “exceptional circumstances would be required” for the judge to issue an order allocating the child’s college expenses after the child had already graduated. 

This does pose somewhat of a challenge as to when is the appropriate time to file a Complaint for Modification seeking that the other parent contribute to college expenses, especially given the length of time it takes to pursue a complaint to judgment in the Massachusetts Probate and Family Court.  The case law provides a very narrow window for seeking relief – the period of time between when you have a pretty good idea of when your child will attend, and the time the first tuition bill is due (unless you have the ability to pay the bill yourself while you await a decision from the court).

When should I start talking to my ex about college contribution?

The short answer is – early and often.   Just like with married parents, early planning around college can maximize your financial preparedness, your eligibility for aid, and no less importantly, set everyone’s expectations around what is possible for the students in your family.

At a minimum, you should start discussing where the child would like to attend college, the costs etc. by junior year of high school (at this point the parents know the child’s GPA and hopefully test scores and can have an educated idea where the child may be admitted for college and potentially attend). By discussing the issue in junior year, you will have time to mediate the situation and hopefully reach an agreement that works for the parent and the child. However, if an agreement cannot be reached by the end of junior year/beginning of senior year, this would be an appropriate time to file a Complaint for Modification regarding the allocation of college expenses.

There is much to be gained, however, from starting the conversation much earlier than junior year.  Strategic decisions can be made that will impact financial aid eligibility (stay tuned for our upcoming interview with Shannon Vasconcelos from Bright Horizons College Coach for more about this).  Even if a court won’t make orders around college contribution for young children, parties can agree on their own to put language into a Separation Agreement that addresses the issue. If you have a teen, you likely are close enough to college to make some reasonable predictions about whether your teen will attend, and what type of college your family can afford; provisions can therefore be made in your separation agreement to address allocation of costs.  A well drafted separation agreement may remove the uncertainty around filing a Complaint for Modification in your child’s senior year. Even parents of young children can memorialize some ideas about college plans for their children in their separation agreement.  Stay tuned for our final post on this topic, in which we will address some common drafting strategies and mistakes.

Will child support be ordered or reduced if the parent previously ordered to pay support is also contributing to college?

As with so many things in the world of family law, there is no definitive answer to this question. Generally speaking, even if a parent is ordered to contribute to college, they will still be required to pay child support. However, the 2017 Guidelines do acknowledge that a reduction of support is warranted once a child is 18 and has graduated from high school by allowing a 25% reduction in child support. Often when setting the child support order, the courts will consider the allocation of college expenses between the parents, available resources, income and how much of the year the child will be residing at a dorm at school or commuting to school from home.  The 2017 Massachusetts Child Support guidelines also provide that when ordering support for a child over age 18 and contribution to a child’s college education, the Court must consider the combined amount of both orders, thus linking the issue of child support and college contribution together.

Have more questions?

If you have any questions regarding college contribution for separated or divorced parents, please feel free to reach out to the experienced family law attorneys at Wilchins Cosentino & Novins at 781-245-5500 or schedule an appointment HERE. 

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