There is no mandatory requirement that parents pay for college education. So, why do so many divorce agreements have a college clause? Because the court has the discretion to order it.
So, in order to protect themselves from what a judge may do, the parties often enter into an agreement which will, hopefully, make the cost a little more bearable.
Because there is no mandatory rule on college payments, the parties are free to come up with a solution which best fits them.
The parties can agree to pay 50/50 or in proportion to their incomes. If the judge is forced to decide, she’ll almost always use the proportion method.
When we talk about college, it can mean just tuition, or can include room and board, books, fees and even transportation. Again, if the parties don’t make the decision, the court will. Without any mandatory rules you cannot predict what the judge will decide.
Another issue that comes up is whether the tuition should be capped. One party will always worry that they might have to foot the bill of $70,000 a year for college. We lawyers have come up with the SUNY CAP. Basically, we get the parties to agree that the tuition obligation should be capped at the level of SUNY Stony Brook, or Albany for a boarding student. Currently in 2016 that is about $23,000 to $24,000 for both semesters.
Judges are not allowed to impose a SUNY CAP. Since it is an invention by lawyers and not found in law, the courts can’t use it. What this means is that if the parties don’t agree to a cap, the court may well order a payment for the entire tuition.
Another frequent question is whether the obligation can be reduced by grants, scholarships and loans. Again, this is based upon agreement. Most judges will reduce the obligation by grants and scholarships. Loans are a problem. Because there is no mandatory statutory rule, parties are at the mercy of judge made rules.
It always seems that the parent making less money is adamant that their child should not have to go to school on loans. Since they shoulder a smaller burden, they see no reason not to spend their Ex’s money. Most judges shy away from loans.
Personally, my oldest went on loans, number two had a 3 year ROTC scholarship and did year one on loans, and number three is going on loans. Yet, at the negotiating table I have seen deals go down in flames because the lower income spouse has drawn a line in the sand in refusing to consider loans.
Since child support only goes until 21, unless there is an agreement otherwise, tuition stops at 21. A judge has zero authority to extend child support or college tuition past 21. But, I hear you say, my friend has paid tuition until his daughter was 23. Yes, he may well have because he agreed to do it. Absent a written agreement, signed and notarized with the same formality as the signing of a deed, child support and college tuition ends at 21.
Many agreements do have clauses extending the tuition obligation to 22, 23 or in some cases as long as the child remains in school. These agreements are enforceable. There was a case where the agreement provided for payment of tuition without an age limitation. This placed the parents on the hook to pay as long as the child was in school regardless of age.
Typically, in agreements which extend the age past 21, we put in clauses mandating that the child must be a full time student, and sometimes requiring a GPA of at least C+ to B-.
Finally, there is the child support credit. While the child is away at college and to the extent room and board are covered, the parent paying child support gets a dollar for dollar credit on that.
This is just a brief overview of the college tuition issue to help you frame questions when you talk to an attorney.