I am always amazed and a bit impressed by parents who, after a financially devastating divorce, want to find a way to pay for their child’s college education. In California, state mandated child support ends (except for disabled adult children) when certain events occur, but never ends later than when a child reaches adulthood at age 18, or age 19 if still in high school. Unless a child is disabled, there is no mandated adult child support (including for college) in California.
The College “Contract”
As a result, lawyers have advised their clients – up until this past week – that an agreement by parents to pay for an adult child’s college expenses creates a contractual right. This meant that unlike state mandated child support for a minor child, which can be modified, a contract for adult child support, such as paying for college, was an enforceable contract that could not be modified. Because often college support orders are negotiated when a child is quite young, and because no one can predict the future, I have always told clients that unless they are wealthy and can put aside money today for college, they should not agree to such a contractual obligation. The simple reason is that they may not be able to afford it many years from now when their child attends college.
The Big Change
As of April 11, 2014, the law in California changed. In the case of Drescher v Gross (filed April 11, 2014), 2014 S.O.S. 1798, the Court of Appeal decided that the contractual agreement between parents to pay support for their adult child, including college expenses, is modifiable, just like child support orders for a minor child. The Court of Appeal went further and said that because the state could not mandate adult support without the contractual agreement of the parents, parents who want to essentially convert this adult support into a non-modifiable contract may do so by explicitly stating it in a court order. This means the order would be enforced regardless of any financial circumstances which may arise for either parent. Without a clear expression to the contrary, the adult support order is subject to modification, just like child support for a minor child, if a material change of circumstance has occurred.
The Drescher decision means that a parent who at one time agreed to share child’s college expenses may potentially avoid this obligation if it is no longer financially feasible when the child reaches college age. This is now the law in California. It is new and needs to be considered when this subject arises in the negotiations in child support matters. Depending upon which side of the table you sit you may find this to be a wonderful decision or a terrible one. But no matter what, it is the law…for now.