Child support and college: Deciding who pays can be tricky

By Erin Komada of Scaringi Law posted in Family Law on Wednesday, September 2, 2015.

There was a time when Pennsylvania's child support and domestic relations systems could require parents to pay for college.

Not anymore. A 1995 Pennsylvania Supreme Court ruling called the practice an unconstitutional violation of equal protection under law.

Still, there are other ways to factor in children's college costs when settling divorce, custody and child support cases. It becomes a delicate negotiation between separating parents and calls for an experienced family law attorney.

Your child's future is bright, but unknown

A binding parental agreement covering college costs - otherwise known as a contract -- can be made an unbreakable part of the divorce settlement or custody order, or it can stand on its own.

I do not recommend parents enter into a legal agreement covering college costs when their children are in elementary school or younger because there are too many unknowns.

First, the relative incomes of the two spouses could change. If the agreement is based on the separating spouses' incomes at the time, the pact could become patently unfair when the time comes to pay for school. Beyond this, what if one of the parents becomes disabled? Under the contract, he or she would remain on the hook to pay for college costs, regardless of income.

College costs also can increase - the tuition one agrees to split when a child is 5 could be many times that amount when he or she is ready for college. Agreeing to pay without really knowing how much you'll owe is always a bad idea.

Finally, there are the wishes of the child. Perhaps he or she will attend a trade school or join the military. Attempting to hammer out a detailed college support arrangement when a child is young might be buying unnecessary trouble that could hold up the divorce settlement or custody agreement.

Reaching an agreement on college

Despite all the variables regarding a child's future, many separating parents want certainty when it comes to paying for college.

There are compelling reasons to reach an agreement on a child's college costs, either at the time of the divorce settlement or the custody agreement, or when child support issues are settled. This is the time when the tax returns and relative wealth of the parties are scrutinized. For many parents, settling the question of paying for college seems like a natural next step.

Often, even warring parents agree with the goal of providing for their children's college. Many place their children's futures at the top of their priority list. Yet this instinct can get parents into trouble, as they might agree to deals that bite them down the line.

I've heard from many regretful parents caught in a binding contract over college costs. Unfortunately, there is little legal wiggle room. As long as the other party wishes to hold you to the deal, it's fully enforceable. The goal should be reaching an agreement that contains as much certainty as possible, even given all the unknowns about a child's future.

Negotiations over college costs often begin with the notion of a 50-50 split. But half of what?

Are you agreeing to pay for Harvard or a state school? Does the amount include room, board and books, or just tuition? Do you want your child to max out on student loans before parental payments kick in? How will scholarships or financial aid be factored into what the parents owe? All these questions should be explored.

Everything becomes a balance between my client's goals and what can be agreed upon by both spouses. As with anything involving two people, especially divorcing couples, even earnest negotiations can result in stalemate.

Don't be held hostage

If the talks over paying for college are at loggerheads, it's often best to set the matter aside in order to complete work on the marital settlement agreement, the custody agreement and to resolve other child support issues.

College costs can be revisited later when more of those unknowns come into sharper focus. I often recommend inserting a clause in the marital settlement agreement stating that the parties agree to discuss paying for their children's college at a later date. This can be either open-ended or can include a specific date for reconvening negotiations.

Given the legal limitations against forcing a parent to pay for a child's college education, the hard truth is that sometimes the issue is never resolved. Sometimes, college expenses fall solely on one parent or the child is forced to max out student loans and go it alone.

In the end, there is nothing compelling a parent to pay for college other than a moral obligation.

To learn more about how Scaringi Law attorney Erin K. Komada can help you, call her toll-free at 877-LAW-2555 or email her at info@scaringilaw.com