Article by Daniel A. Levy, Esq.
As part of my divorce practice, clients routinely ask me about college for the children. They want to know how to manage the college savings after they are divorced, how to choose colleges when they are co-parenting, and what will happen if the parents disagree. In fact, this isn’t just about divorce cases, but any case where the parents are both involved with the child but no longer living together as one family unit (like parents who are separated but were never married).
There are two major court cases that discuss this issue. First, there is Newburgh v. Arrigo, which sets forth the factors that courts look at when a judge has to decide the issue: In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. Second, there is Gac v. Gac, which essentially says that the child and one parent cannot unilaterally make major college decisions, incur substantial costs, and then send a bill to the other parent.
I go over these things with client so that they know what to expect in the event that there is a dispute and someone has to file an application with the court. But what I typically spend more time on is a discussion on how to avoid disputes in the first place.
For all cases, I always encourage discussions between the parents so that plans are in place and everyone is on the same page. In divorce cases, I always insist on some kind of language in a marital settlement agreement that accounts for college expenses. Either the parties can agree on a firm plan now (as in, how they will save money now and finance college and how college will be chosen later) or have an agreement that contemplates that this discussion will happen closer to college time. This is especially applicable when the children are young and the parents are not in a financial position to start saving for college. With parents who were never married, it’s a little trickier because there is no settlement agreement. In those cases, it’s even more important to communicate with each other and keep in mind the fact that one parent cannot act alone and send a bill to the other after the expenses are already incurred. But in either event, it is generally a good idea to have an attorney assist the parents in arriving at an acceptable solution.