Paying for College After the Divorce
Most divorces can be settled obviating the need for protracted and costly litigation. When the parties reach a settlement it is important that the agreement provides for the well-being of the parties and, if applicable, the children of the marriage. What parties sometimes over look is what is going to be in their best interests ten or fifteen years in the future. If you enter into an agreement which is silent on a topic which, ten years in the future, is now important to you, you may have to go back to court. This is what happened in Grubler v Grubler, which was recently decided.
In Grubler, the parties were married in 1984. The marriage produced three children. The matter was settled in 1997 and the parties were granted joint custody of the children however, the husband was granted physical custody of the three children with the mother having to pay child support. The agreement was silent with respect to financing the college education for the three children. Unexplainably, the wife stopped paying child support and the father brought a petition in the Family Court for child support. Interestingly, and to the wife’s benefit, the husband did not bring an action for college tuition. The Family Court, on its own, granted the husband’s petition for child support and then ordered the wife to pay twenty-nine percent (29%) if the children’s college education.
Unlike the obligation to provide support for a child’s basic needs, support of a child’s education is not mandatory. Pursuant to Domestic Relations Law §240(11-b)(c)(7), a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the Court’s discretion is not improvidently exercised. In Grubler, the appellate court overturned the Family Court’s decision with respect to college tuition, holding that the husband didn’t petition the Court for tuition assistance thus it was an abuse of discretion to order the wife to pay for part of college.
When negotiating your settlement agreement, if you have children, college is something you should absolutely include in your agreement, even if you are not going to pay for it. If you do not provide for it in your agreement, you are leaving yourself open to come back into court years later. Generally speaking, Court’s like to provide for the children’s education, especially if both parents are college graduates. However, you can limit your financial exposure in the agreement. Typically what you will see in an agreement is that the parties will agree to pay their pro-rata share of college up to the cost of attending the State University of New York (SUNY). So, for example, if your child gets into Harvard, you are only responsible to pay your pro-rata share of what it would cost if you child were to attend a SUNY school.
How do you determine your pro-rata share? That depends. The first option is to base it on the parties income at the time the agreement is being drafted. If your income is steady and you do not expect it to increase much in the future, that may be the best option. If you think your spouse’s income may significantly increase in the future, you may want to provide that the pro-rata share is to be determined based on the tax returns for the year prior to your child entering into college.
If you do not provide for college in your agreement, your spouse may be able to drag you back into court years later to have you provide for it. In the Grubler case, the wife was fortunate that the husband did not petition the court for college assistance as it seems clear that the Court was predisposed to granting college tuition assistance to the father. If the parties do not intend to pay for college, a one or two line sentence in your agreement expressing this can save both parties the costs and uncertainty that comes with litigation.
If you’re facing a similar situation make sure to call Divins & Divins, P.C., for a free consultation to solve your potential problems.