‘Tis the season! September is here and our children are off to college. For all the uncertainties of a new chapter in their lives, one thing is certain: college is expensive! How will it be paid? Did you start planning for the payment of college at conception? Did you open 529 accounts? Or, did you both agree that you would find or scrape up the money when the time came to send them to college?
When an unexpected life event happens, such as a divorce, parents are often at a loss for how they will pay for college. As of August, 2013, the law now provides parents with the option to address how college expenses will be paid in their final decree of divorce. If parents agree to allocate college expenses in some fashion, the court merely requires that the parents also identify whether the requirement to pay for college is a modifiable or a non-modifiable event.
RSA 461-A:21 provides:
Parents may agree to contribute to their child’s college expense or other educational expenses beyond the completion of high school as part of a stipulated decree, signed by both parents and approved by the court. The agreed-on contribution may be made by one or both parents. The agreement may provide for contributions to an account to save for college, for the use of an asset, or for payment of education expense as incurred. Any such agreement shall specify the amount of the contribution, a percentage, or a formula to determine the amount of the contribution.
Regarding modification, RSA 461-A:22 states:
Every agreement made under RSA 461-A:21 shall state whether the agreement either is modifiable or is not modifiable. To qualify as not modifiable, the agreement shall state a specific dollar amount to be contributed by either or both parents. If the parents’ agreement states that it is modifiable, the legal test for modification shall be a substantial change in circumstances that was not foreseeable when the agreement was signed.
The Court did not always have the authority to approve or enforce the payment of college expense. In fact, between February 2, 2004 and August 27, 2013, the Court had no authority to address the payment of college in a divorce case. Prior to February 2, 2004 the court had the authority to order an allocation of payment of college expenses.
Therefore when it comes to the payment of college expenses, it is important to check the date of the order of your final decree of divorce. You may find that your spouse is required to assist in the payment of college expense.
At Brennan Lenehan, we can analyze your court orders to see if there is a requirement for the payment of college expenses for your children by either you, your former spouse or both of you. We are happy to assist you in what is likely to be one of the most important events in your children’s lives.