It’s spring and college acceptance letters are in the mail. It’s that time of year when parents start looking at how to pay for college. As you might expect, this is an area of frequent concern in divorce, as this article by my colleague Ron Barriere points out.

Best,

Nancy 

Ronald P. Barriere

As attorneys, we frequently get text messages and emails referring us to sensational stories related to our practice area.  Last week was no exception, as our inboxes were flooded with links to various articles concerning the New Jersey teen, Rachel Canning, who sued her parents after a falling out over a boyfriend and household rules.  (Three particularly good articles about the story can be found on Yahoo, the ABA Journal and the New York Post.)

The most common question we receive when a story such as this appears in the zeitgeist is “Can someone really sue over this?”  Usually, the answer is yes.  In the Canning case, the identity of the litigants is what makes the case novel:  It is rare that parents are unified in opposition to the child in a dispute about education costs.  The facts, however, are all too common.  Our office handles dozens of cases each year involving parents disputing the amount and allocation of their children’s private school and college costs.  These cases will only become more common each year as increases in tuition costs continue to outpace the rate of inflation.

In Massachusetts, courts rarely determine how college will be paid for unless the expense is imminent.  That is, most divorce judgments issued after trial do not address the issue at all unless a child of the parties is of high school age.  (Parents of small children may get language in their judgment that “the parties will each contribute to college expenses in accordance with their means,” or no language at all.)

When the courts do address college expenses as part of a divorce judgment, the results can vary widely because the court’s analysis is often very fact specific based upon the incomes of the parties and the size and liquidity of marital assets.  The analysis can be further simplified if the parties had the wherewithal and foresight to set aside funds for the express purpose of paying for college during the marriage.  The interrelationship between child support and college expenses is also relevant and is a factor to be considered by the court in applying the Massachusetts child support guidelines.  (See Massachusetts Child Support Guidelines, Section J: “Other Child-Related Expenses”.)

Of course, most divorces in Massachusetts end in agreements, and payment of college expenses is frequently considered.  In most cases, parties can “control their destiny” by making specific arrangements in advance to contemplate how college will be paid for.  These provisions can range from the vague (i.e. “the parties agree to pay for college in accordance with their means”) to the extremely specific.  Common provisions include limiting parental contribution to that of an agreed upon state school, allocating what percentage of then-existing education plans shall be credited toward each of the parties’ respective contributions, and defining exactly what constitutes a college expense.

A further complication is that all child-related issues – including college – may be later modified by agreement or further judgment of the court.  This is statutory recognition of the fact that children (and their needs, both financial and otherwise) change as they grow, but it can lead to further litigation between the parties if the child makes an unexpected college choice (say, art school as opposed to traditional university) or if the parents’ financial means change.  However, the payment of college expenses in and of itself does not constitute a material change in circumstances to justify a modification of a divorce agreement when it was foreseeable at the time of the divorce. See McCarthy v. McCarthy, 36 Mass. App. Ct. 490 (1994).

Parties to a divorce agreement or judgment that was silent about payment of college must be careful not to wait too long to seek contribution.  The Massachusetts Appeals Court has held that “exceptional circumstances” are required to compel responsibility for college expenses upon the child’s college graduation. See Purdy v. Colangelo, 61 Mass. App. Ct. 322, 331 (2004).

The treatment of college expenses, like most other matters in the family law area, requires careful consideration and guidance.  Divorcing and divorced parties with college-bound children should use care in selecting knowledgeable counsel to help guide them.