My Child Is Ready For College But My Decree Is Not

On behalf of The Marks Law Firm, L.L.C. posted in Child Support on Wednesday, May 22, 2013

We have had some clients of late who have children about to graduate high school and begin college. Unfortunately, some of these clients had divorce decrees entered eight to ten years ago, and the decrees did not provide for the handling of the costs of higher education. Do they have a means to make the other spouse contribute to the college costs? Can a court even order payment of college expenses?

Higher education expenses have a strange place in Missouri law as it currently exists. A family court can only order what the statutes allow, and presently, no statute specifically tells a family court it must enter a provision regarding the allocation of higher education expenses or, in fact, if it has the authority to make a parent contribute at all.

Courts do make these allocations, however, likely find the authority in the expenses associated with college as a form of child support, specifically, “other” expenses that may be added to line 6(d) of the Form 14 calculation. When handled in this manner, the court effectively allocates each party contribute based upon his or her income share from the Form 14. One must be careful, however, in how one handles the line 6(d) addition, because if all of the education costs are put on the parent paying support, it will result in a child support credit, whereas putting them with the parent receiving support will result in a much higher child support amount.

So, if you find yourself in this situation, you would need to file a motion to modify, with the change in circumstance the failure of the decree to consider the cost of higher education. Once the motion is on file, the parties can negotiate a shared allocation or leave it to the court to determine an allocation. Parents should know that Missouri courts generally cannot order paying for more than a portion of the in-state tuition cost to attend the University of Missouri-Columbia, though parties can agree to an allocation for higher amounts, subject to court approval as to fairness.

Another related problem occurs when a child is ready to attend college, the decree states what each parent must pay, but the income allocations were different at the time of the decree. Fortunately, this problem is much easier to solve – a motion to modify based on a change in income, which will allow the court to recalculate the income shares and determine what each party can still afford to contribute. What happens if both parties have suffered a decrease in income such that neither can really afford to pay for college? Can the court make them pay? Given the lack of clear statutory authority, probably not. A court has no basis to force a parent to go into debt to pay for a child’s college education.

We would encourage the General Assembly address this problem more directly, as more and more divorced parents face the difficult challenge of paying for college and clear, explicit and fair guidelines would help matters greatly.

If you have questions about allocation of costs of college for your child, contact us – we can help.