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Child Support and College Education Costs

Payment of college education costs by parents of an adult child is a privilege for the child not a right. With the escalating cost of a four year degree, the issue of one parent or both parents in a divorce action paying for college has become a very contentious matter. Since 1991, the Probate and Family Court can make an order pertaining to the support, maintenance and education of a child up to age 23. For support to continue to be paid, the child must be living in the home of a parent and primarily dependent upon that parent for support due to enrollment in college. In Kirwood v. Kirwood, 27 Mass. App. Ct 1156, the court determined that a child was not dependent on the mother for support despite the child domiciled in the mother’s home. Father paid a substantial tuition, paid for uninsured medical expenses and paid for vacations for the child, among other expenses.

In a recent appeals court case, the court determined that the trial court judge did not abuse her discretion when she modified a divorce judgment determining a husband overpaid child support as he had paid for the child’s education. Their income was over $250,000. Therefore, the child support guidelines did not apply. The child was living at college most of the year and the college expenses were substantial. The court found that under Mass. General Laws Ch. 208, Section 34, a judge has considerable discretion in setting child support orders.

Despite the court having the ability to make an order for educational costs, the issue of whether a court can order divorcing parents to set up an educational trust is still undetermined. A trust would require use of marital property to set it up. Under Mass. General Laws Ch. 208, Section 34, a court is not authorized to award parental property to be given to a child. However, under Section 34, it can consider the present and future needs of the children. In one case, an order was upheld for mother to create an educational trust when she had cashed out certificates of deposit bought by the grandfather for the children’s educational costs. Neither parent was able to pay for college from their income.

Under Mass. General Laws Ch. 208, Section 28, a clear distinction is made between an order to meet the needs of minor children and the needs of adult dependent children. In the Passemato decision, the court found that while a child is still a minor, orders regarding future payment of post high school education costs are premature and should not be made. An order for college expenses before the child is near age eighteen is invalid unless there are special circumstances. Braun v. Braun, 68 Mass. App. Ct 846 (2007).

In some cases when college expenses are merged into the divorce agreement and both parents are to share expenses, the court considers factors such as income of the parents, the standard of living which the child would have enjoyed if the parents were not divorced, the cost of school, the child’s scholastic ability, and the extent one party may have been excluded from the college decision process in determining whether it is reasonable for the parents to share expenses.

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