Family Law Section Blog: Tips to Avoid Pitfalls in Divorce Agreements Requiring Children’s College Payments:

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  • Family Law Section Blog
    March
    09
    2020

    Tips to Avoid Pitfalls in Divorce Agreements Requiring Children’s College Payments

    David S. Kowalski

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    Marital settlement agreements requiring college expense coverage for children can prompt disputes years after the divorce. David Kowalski discusses basic law on parental obligations for adult children, and suggests language to clearly define all parties’ obligations for parents jointly assuming this obligation.

    Have you seen a marital settlement agreement with the following provision, or something similar: “Parents agree to each pay one-half of their son’s reasonable college expenses.”

    Unfortunately, I have seen several agreements with similar wording, typically when a new client calls 10 years after the divorce to resolve the inevitable dispute over this obligation.

    This article will first review some basic law on parental obligations for adult children, then offer some potential language to use if parents wish to jointly assume this obligation.

    Basic Law on Parental Obligations

    Parents’ obligation to financially support their children ends at age 18, or 19 if the child has not completed high school.1 The divorce trial judge does not have authority to order either parent to support an adult child.2

    Parents can, however, contract in their marital settlement agreement to assume such an obligation. If so, courts will enforce it.3

    The takeaway is that one parent cannot force the other, over objection, to pay for a child’s college.

    David Kowalski com david kowalskifamilylaw David Kowalski, Marquette 2007, is the founder of Kowalski Family Law LLC in Madison and Baraboo, where he concentrates his practice in family law.

    Sometimes, a parent will agree to do so, in negotiation for another desired goal (decreased maintenance, for example). Sometimes, both parents agree that supporting a child through college is an important shared goal. However, they should consider this obligation very carefully before committing it to an order.

    Consider the above language: “Parents agree to each pay one-half of their son’s reasonable college expenses.” Who decides what is reasonable? What exactly are the “expenses?” Likely tuition, room, board, and books. What about study abroad, recreation, internships, fraternity/sorority costs, travel, medical insurance required for school attendance?

    Compounding the problem, because their child is an adult, neither parent has any custodial authority to make decisions for the child, even if they had joint custody before their child emancipated. There is no way to formally influence the child’s choices. If the child chooses to attend school at the Sorbonne in Paris, the terms of the agreement arguably obligate the parents to pay for it.

    Another question: who has authority to enforce the agreement? Typically, it is one parent who wishes to pay for college, over the other’s objection. However, if neither parent wants to pay, can the child enforce the agreement?

    The concept of a child suing parents to pay for college may seem odious, but it has been done. In 2017, an adult daughter sued her parents in New Jersey to pay her college costs. Her request was granted by a lower court, but overturned on appeal.4 One envisions interesting conversations around the Thanksgiving table afterward.

    Suggestions for Language: Specificity Matters

    If both parents wish to assume a college obligation, however, the best advice is to clearly specify the obligation.

    The following language is one idea:

    Each parent shall pay one-half of son’s college expenses, defined as follows:
    • Tuition, room, and board (not to exceed the cost of an in-state student at UW-Madison);

    • Books (up to $__ per year);

    • Medical insurance required for attendance

    If the child receives a GPA of less than 2.5 for two consecutive semesters, the parents’ obligation is terminated. This obligation is also limited to eight consecutive semesters, which must be completed before the child’s ___ birthday.

    Language could be included about the parents’ ability to pay, or other triggering mechanisms. It is intended only as a starting point. The provision must be tailored to each family, and should likely be more specific than the above.

    A Weighty Obligation

    The cost of college is not decreasing anytime soon. Parents who request this agreement are assuming an enormous obligation and betting that, years in the future, they will be able to satisfy it.

    Divorce lawyers should have very clear discussions with their clients in these circumstances.

    Save the date for the 39th Annual Family Law Workshop, Aug.6-8, 2020, at the Stone Harbor Resort in Sturgeon Bay. Scholarships for the Workshop are available. For eligibility and details, see the scholarship application.

    Endnotes

    1 Wis. Stat. section 767.511(4).

    2 Schmitz v. Schmitz, 707 Wis. 2d 882, 891 (1975).

    3 Bliwas v. Bliwas, 47 Wis. 2d 635, 640, 178 N.W.2d 35, 38 (1970).

    4 Ricci v. Ricci, 448 N.J. Super 546 (App. Division 2017).

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    Family Law Blog is published by the Family Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact com james jcwbesq James Carson Bock and review Author Submission Guidelines. Learn more about the Family Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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