By Dana McKee

Many parents hope and expect that their children will attend college after high school graduation.  While some parents start saving for college as soon as their child is born, others wait until much later to open a college fund.  Yet, other parents do not designate money for college at all, hoping that their child will instead receive a sports scholarship, merit award, or substantial financial aid to cover the costs.  Regardless of which group you fall into, a divorce can throw a wrench into even the best laid plans.

Can a Parent Be Required to Pay for College?

In Maryland, parents do not have a legal duty to pay for college or otherwise support their college student.  Under Maryland law, parents have a legal obligation to support their child only until the age of 18, unless the child is still in high school in which case the obligation extends to graduation or the age of 19, whichever comes first.  In most cases, the obligation to provide support has ended by the time the child is eligible to attend college.  However, many parents, including those who are divorced, continue to provide financial support to their child while he or she attends school.  This support may be provided voluntarily by divorced parents, or as a result of a negotiated provision in their marital settlement agreement.

Should College Expenses Be Addressed in Your Marital Settlement Agreement?

Married parents often discuss how they expect to fund a child’s college education.  Relying on the decisions made from those discussions, they tailor their financial affairs accordingly.  But these plans may be upended during a divorce.  While some parents may be willing to honor prior oral agreements regarding the payment of college expenses, others will not be so inclined.

Because a marital settlement agreement is a binding contract, any provision for the payment of college expenses contained therein is enforceable by the court.  Some parents feel uncomfortable entering into this contractual obligation, particularly if the child is very young, because there are too many variables that may make such a provision unbearable in the future.  What if the parent becomes disabled?  What if the parent does not have the financial wherewithal to pay as promised?  What if the parent and child are estranged?  For these reasons, many attorneys advise against addressing college expenses in a marital settlement agreement, leaving it up to the parents to decide if and how they will fund college when the time comes.

At Brown, Goldstein & Levy, we know that each case is different and the decision regarding the future payment for college must be considered on a case-by-case basis.  Here are some questions to consider before deciding whether to include a provision to pay for college in a marital settlement agreement:

1. Have the parents started to save for college?  Have they invested in a Coverdell Education Savings Act (“ESA”) account, 529 plan, or the Maryland Prepaid College Trust?  (If so, this should be addressed in the marital settlement agreement.)
2. How old is the child?  Is the child close to entering college or is the child an infant?
3. Do the parents have the financial ability to contribute to the child’s college education?
4. What type of relationship does the child have with each parent?
5. What is each parent’s philosophy on who should bear the cost of a college education?  Should the cost be borne by the child alone, shared with the child, or should the child not have any responsibility to pay for college?
6. Do the parents want to have meaningful input regarding the child’s college choices?
7. Should the definition of college be limited to a four-year program that leads to a bachelor’s degree or should the definition be broadened to include graduate school and vocational or trade schools?

There is no right or wrong answer to whether a provision to pay for college should be included in a marital settlement agreement or custody agreement.  This determination should be made in consultation with your attorney.  The divorce attorneys at Brown, Goldstein & Levy can provide meaningful advice on this issue.

Can Parents Limit Their Obligation to Pay for College?

Unlike child support, which a court can modify in the future, a contractual obligation to pay for a child’s college education is not subject to modification unless the written agreement expressly provides for this.  Therefore, if parents do decide to address the payment of college expenses in their marital settlement agreement, they may want to consider:

1. Having a minimum level of income at the time the child attends college before the obligation to pay is required;
2. Limiting their contractual obligation to the cost of tuition, room and board, and fees charged by a state university as an in-state student even if the child decides to attend a different school or a more expensive school;
3. Requiring the child to apply for financial aid before the parents are obligated to pay for college;
4. Requiring the parents to cooperate in the financial aid application process, including providing financial information and filling out necessary forms;
5. Requiring the child to maintain a minimum grade point average;
6. Requiring the child to attend college full-time; and
7. Limiting the obligation to four (4) consecutive years of college.

The family law attorneys at Brown, Goldstein & Levy have assisted many parents in crafting the terms of their marital settlement agreement or custody plans.  We represent clients in Baltimore City (such as Bolton Hill, Canton, Federal Hill, Fells Point, Guilford, Homeland, Mt. Washington, Roland Park), Anne Arundel County, Baltimore County, Carroll County, Harford County, Howard County, Frederick County, Montgomery County, and Prince George’s County.  If you need assistance in your divorce or custody matter, call Dana McKee at 410-962-1030 to schedule a consultation.