It is not uncommon for parents to negotiate who will be responsible for college expenses after divorce, as part of their final divorce agreement. We refer to it as “agreement”, because this is not an issue frequently litigated at trial.
The court’s jurisdiction over the parties’ children, except under very rare circumstances, ends when the child reaches adulthood and emancipates. The only scenario where the Family Court would provide for the payment of college expenses would be if the person attending college was a minor.
Even then, the ruling would only extend until the child became emancipated. For example, if the parents have a genius 15-year-old who is a freshman in college, the court’s ruling would address the child’s first three years of college (until the child turned 18), but would not provide for the child’s fourth year of college.
When divorcing parents enter into an agreement related to college expenses, they are essentially entering into a contract. This means that the obligation to perform on the contract arises out of contract law and not Title 25. Title 25 is the statutory framework that governs divorce and child custody proceedings. Child support is a great example of a right that arises out of Title 25.
If child support is provided for in a divorce agreement, and the parent who is supposed to pay support fails to pay, the receiving parent has special remedies available to them through Title 25. For example, the obligor parent could have their tax refund intercepted, or, ultimately be thrown in jail.
Due to the contractual nature of college tuition/expense agreements, the non-paying parent does not have standing to sue in the event the responsible parent fails to pay. The reason for this is that the obligation (to pay for college) is not owed to the non-paying parent. Rather, the child, as the beneficiary of the contract, must be the one to sue in the event of non-payment.
As you can imagine, this creates an awkward dynamic between the parents and child, and rarely results in a lawsuit. Thus, if you are the non-paying parent, and your goal is to ensure your child’s college expenses are paid for by the other parent, be wary of any blanket contract language. Even if the language says exactly what you want it to say, you may have no recourse in the event of nonpayment.
Perhaps the best solution to this problem, is to take a portion of the marital assets and put them in a carefully drafted trust for child’s education. Placing money in trust for the child’s education will ensure that the funds are available when the child needs them, and avoids the issue of non-payment altogether.
Of course, this is only an option if the parents have assets available to place trust for the child’s college expenses. If this option sounds appealing to you, make sure you hire an attorney who is familiar with both family law and trust law.