Once child support is figured out, questions often remain as to whether the parties can agree, or the court can order, other types of payments, such as college expenses, special needs programs for a child, or enrichment programs or competitive activities for a gifted and talented child. Specifics will vary slightly from state to state as will what a court can or will order, depending on whether the judge is reviewing and adopting the parties’ agreement or deciding the matter as a contested proceeding because the parties cannot agree. Thus, the experiences of a divorced friend or relative may not be a good indication of the options available in your case.
Ask your lawyer whether a court in your state can order a parent to contribute to the cost of a child’s college education after parents divorce. Even if the court cannot issue such an order, typically it can enforce an agreement negotiated by the parents as part of their divorce settlement. Whether you agree to fund college expenses or are asking the court to order such payments, be specific in your request. Ordering a parent to “contribute” to college costs for Johnnie or Susie will be difficult to apply or enforce without more detail. Does the cost include tuition, books, fees, room and board (on or off campus)? How about clothing, recreation, or travel to and from campus? There is no single right answer, but identifying the scope of the obligation is critical.
How will the school be selected: by joint agreement between the parents, joint agreement between parents and child, child’s choice, or some other method? Do you want to require payment for other post-secondary education, such as a professional or trade school?
Do you want to cap expenses? Parents of substantial means may not worry about the future costs of an Ivy League education. However, a parent of more modest means may not be in a position to take on a potentially unlimited obligation. One option is to cap the contribution at a fixed sum per year or at actual costs, whichever is less. This alternative may work well if the child is in college or near college age already. However, selecting a workable dollar figure for a child who is years away from college will be far more difficult.
In the latter case, a more workable approach may be to cap costs at the level in effect for attending a state university (as an in-state student living on campus) at the time the child goes to college. This approach provides a somewhat controlled budget. Since the cap applies as a maximum contribution from a parent or parents, no matter what school the child actually attends, there is no need to lock in a choice sooner than would otherwise be appropriate, based on the child’s aptitudes and interests. There also is a built-in mechanism for the contribution to reflect the costs of college at the time the child actually attends, rather than calculating now what expenses might be at some time in the future.
In some divorce cases, parents agree to preserve a particular investment account or other asset for the future funding of a child’s higher education. If such an agreement is contemplated, be sure to address how the account will be managed between the time of the agreement and when the child is ready to attend college. You also may want to consider whether or under what circumstances either parent will be obligated to make additional contributions to the account after the divorce. It also may be wise to address what will happen with the proceeds of the account if the child elects not to attend college or if higher education expenses are less than the total proceeds of the account. One option is to divide any remaining balance between the parents. Another is to transfer the balance to the child.
As part of a divorce proceeding, a court typically cannot divide between the parties a savings account or other investments formally held in the name of a child, such as an account created under the Uniform Transfers to Minors Act or some equivalent provision. However, typically one parent is named as custodian of the account. In such a case, parents should consider whether or to what extent the custodian of the account must share with the other parent information relating to management of the account.
If a child of the marriage is disabled or has special needs, two major areas of concern may arise. First, how will you fund those special needs after a divorce? Second, is there a way to address medical needs, long-term care, or other concerns for a child who is unlikely to be financially independent at or beyond the local age of majority (18 or 21, depending on state law)? Substantially different rules may apply, depending on whether the child in question is younger than (or older than) the age of majority in the state in which the issue is being addressed.
For children who have not yet reached the age of majority, it is important to consider what expenses, if any, will be shared by the parents, apart from the routine payment of child support. While variations exist from one state to another, generally state law dictates whether, and in what fashion, uninsured medical expenses can be divided between parents. However, a special needs child may have substantial expenses for equipment, classes, or other items that do not necessarily fall within the typical definition of medical expenses. Address with your lawyer whether, or to what extent, court orders are available to divide those expenses between the parents. It also will be important to consider who will make the decisions or how disputes will be resolved in the event of a disagreement between the parents as to the reasonableness or necessity of a particular treatment program, equipment, special education enrollment, or the like.
Keep in mind that if the child has special educational needs that cannot adequately be addressed by local public school programs, state funds may be available for private school placement. However, administrative or legal proceedings involving the child’s parents and the school system are sometimes necessary. It may be productive to address such details in advance, for example, which parent will take the lead on handling such matters and whether parents will share expenses if legal fees must be incurred to secure education placement.
Unfortunately, some children suffer from illnesses or disabilities, which means that they will not be physically or economically independent, even at the age of majority. In some states, the court has the power to order a continuation of child support, even after the child has reached the age of majority. If this is a concern, ask your lawyer whether, or to what extent, post-majority court-ordered child support is available in your state. Particularly if post-majority support is not available, you may want to begin the process of applying for any available disability income programs well in advance of the time your child reaches the age of majority. It also may be productive to address at the time of the divorce whether it is appropriate to set aside funds for the child’s post-majority needs. However, keep in mind that the judge in your case may not have the power to order such an arrangement unless you and your spouse agree to do so.
Gifted and talented
In some families, a child may have extraordinary intellectual, musical, athletic, or other talents. Unfortunately, nurturing and developing the special potential of a gifted or talented child frequently requires investments of time and money far above what might be anticipated for the “average” child. The ideal situation is one in which both parents are equally committed to supporting the child’s musical, athletic, or other training. If that is the case, however, it would be wise to identify, at least in general terms, the types of programs for which shared support is expected. For example, simply agreeing to share the cost of “music lessons” may not be sufficiently detailed. It may be useful to address whether transportation to and from lessons will be shared, how many lessons per week or per month will be funded, whether musical instruments or other equipment will be duplicated in each home, and will practice time supersede other parenting-time arrangements. Similar considerations with respect to sports equipment, practice time, special coaching, and the like will be relevant if the child has special athletic abilities. If the child is intellectually gifted, considerations may include private schools, enrichment programs, enrollment fees, and/or transportation to advanced classes outside the local school.
About the Author: Kathleen Hogan is a principal with McGuane and Hogan, L.L.P. in Denver, Colorado, and member of the Family Advocate Editorial Board.
This article was originally published in the September 2009, Vol 32, No. 1 issue of Family Advocate entitled “Client Manual: You’ve Got Choices”. The manual is available online at http://www.abanet.org/. The article is reprinted here with permission of the American Bar Association.
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