Sending Kids to College After Divorce or Separation – What Parents Need to Know

If you have gone through a custody dispute or divorce involving children in Connecticut, you have likely seen in your separation agreement  a provision indicating that the court is “retaining jurisdiction” to enter an educational support order (college support order) pursuant to Connecticut General Statues Section 46b-56c.  But what does that mean?  More importantly, what is expected of you, the parent, in order for the court to even entertain a motion to enter orders concerning your child’s college education?  In this post, I will explore some of the answers to those questions.

To begin, it is important to note that the court does not have jurisdiction to enter educational (college) support orders for children 23 years-old or older.  Second, the court is not likely to have jurisdiction to enter any educational support orders if, at the time that the court entered the divorce decree, it did not retain jurisdiction to do so.  The court retains jurisdiction if, at the time you are divorced, the judge finds that it is more likely than not that the parents would have provided support to the child(ren) for higher education or private occupational school had the family remained intact.  The court does not retain jurisdiction if, for example, you and your ex-spouse agreed in your divorce agreement that you would “share equally” in the costs associated with college, making no mention of the court retaining jurisdiction.  The language has to be clear that the court is retaining jurisdiction pursuant to Connecticut General Statutes Sec. 46b-56c.  Once you get past those two jurisdictional hurdles, the questions become a bit more technical.

The next issue is whether your child will be enrolling in an “accredited institution” of higher education or a “private occupational school.”  A list of accredited post-secondary educational institutions can be found here:  https://ope.ed.gov/accreditation/.  Defining a “private occupational school” can be a bit more challenging, and it may be more helpful to know what is not considered a private occupational school.  Specifically, the court does not consider any of the following forms of instruction as an acceptable private occupational school:

(A) instruction offered under public supervision and control (i.e. if it’s a “public” school, by definition it cannot also be a private occupational school);

(B) instruction conducted by a firm or organization solely for the training of its own employees or members; or

(C) instruction offered by a school authorized by the General Assembly to confer degree.

So, for example, insurance agencies often have their employees take an in-house training that is typically to be paid by the employee.  If the employee wanted his/her parents to pay the cost, or of one parent wanted the other to pick up part of the costs, by law neither parent would have any obligation to contribute to the costs of such program.

If the above criteria are met, the next question is whether the child is enrolling as a new student or they are re-enrolling after completing any amount of prior schooling/training from a college or private occupational school.  The second scenario often arises when parents divorce and the child “gave college a shot” and then decided to withdraw – it’s more common than you think.  In that situation, the court really focuses on a couple of key criteria:  1) did the child leave in “good academic standing” according to the institution and 2) is the child going to pursue a course of study “commensurate with the child’s vocational goals.”

If the child left college in anything but good academic standing (usually defined by the school as being under “academic probation” or “academic suspension”), that fact is not likely to cause the court to automatically preclude one parent from seeking support for the child from the other parent.  However, it would be cause for the court to place the child’s future performance under a microscope.  Failure to stay in good academic standing for a second year may well result in the court’s refusal to obligate the parents to contribute any further.   Moreover, whether the child is going to pursue a course of study commensurate with his/her vocational goals is a question that will likely be a stumbling block for those children who tried and failed college the first go-round because another factor, “the child’s preparation for, aptitude for and commitment to higher education” comes into play.  It would be a valid argument for one parent to say that he/she does not want to contribute toward the child’s attempt to attain a degree that is unattainable given the child’s preparation/aptitude/commitment.  But again, the court would likely not fault the child for the first attempts, instead placing the child’s performance under a microscope from that point forward.  Moreover, the parent making the above argument certainly wouldn’t win brownie points with their child for making that argument in open court and on the public record.

Other factors to be considered for parents of returning students are 1) whether the child refuses to allow both of their parents to see his/her academic records and 2) whether the child is enrolling in at least one-half the course load determined by that institution or school to constitute full-time enrollment.   If the child refuses to produce his/her academic records to either parent, it is not likely that either parent would be obligated to contribute to that child’s post-secondary education costs from that point forward.  Likewise, if the child is not enrolled in at least half of a full-time course-load, it is not likely that either parent would be obligated to contribute.

All of the above criteria also apply to first-time students, but being in “good academic standing” and providing academic records are not really applicable because there is no prior academic history to review and the parents will have to front the cost of the first year before any grades are recorded.  The other criteria, however, become more relevant.  That is, the court will focus heavily on whether the child is enrolling in at least ½ a full-time course-load and whether the child is pursuing a course of study “commensurate with the child’s vocational goals.”  The former is easy to determine.  The latter, however, requires the child’s input as parroted by the parents.  While the court may appoint counsel to represent the child’s interests in this action, it is important to note that the child has no right to independently seek support from his/her parents – the right is asserted for him/her by one or both of the parents.    Unfortunately, it is not uncommon for each parent to have different views on what the child’s “vocational goals” are, especially if the child does not know what he/she wants to do in the first place.  As long as the parents aren’t on complete opposite ends of the spectrum on this issue, the court is not likely to dismiss the action for failure to show that the schooling is entirely commensurate with the child’s vocational goals.

After the above criteria are met, the court technically has enough to then conduct a further inquiry to determine how much, if anything, each parent will be obligated to contribute toward the child’s expenses.  However, there is one issue that often arises and which has not been adequately addressed by the legislature or our courts:  what happens when one parent unilaterally decides that the child is going to attend a particular university/program and, after the child is enrolled, demands that the other parent contribute to the costs already incurred.

There is a provision in CGS § 46b-56c indicating that both parents “shall participate in” the decision as to which institution of higher education or private occupational school the child will attend.  There is an argument to be made that, if one parent truly unilaterally chose the college without even giving the other parent so much as an opportunity to give his/her input, the parent taking such action should be obligated to bear those costs alone.  However, if the court were to do that, it might be penalizing the child for his/her parent’s poor choices.  With that in mind, the in-the-dark parent should bear in mind that the court is not likely to simply dismiss the action for that reason.

If the court entertains the case, the judge then will consider, among other things, the following:

(1) The parents’ income, assets and other obligations, including obligations to other dependents;

(2) the child’s need for support to attend an institution of higher education or private occupational school considering the child’s assets and the child’s ability to earn income;

(3) the availability of financial aid from other sources, including grants and loans;

(4) the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available;

(5) the child’s preparation for, aptitude for and commitment to higher education; and

(6) evidence, if any, of the institution of higher education or private occupational school the child would attend.

The court will have the ability to consider the above factors because each parent will be obligated to submit a financial affidavit to the court, which lists the income, expenses, liabilities and assets.

When considering how much each parent should contribute to college, the first funds that should be applied to those expenses are college savings funds.  Simple enough, but what if there is a mix of college savings from prior to the divorce and college savings accrued after the divorce by each parent independently?  At the end of the day, it’s all going to be spent in the same place, but funds saved by one parent while the other parent failed to save anything shouldn’t benefit the non-saving parent.

Example:  Mom and Dad divorce, having saved $50,000 for Child at the time of the divorce.  After the divorce, Mom is able to save another $50,000 while Dad saves nothing.  If Child’s college costs $100,000, is it fair to apply the pre-divorce $50,000 and Mom’s post-divorce $50,000 while Dad pays nothing?  Probably not.

One factor that is somewhat controversial is the availability of financial aid from other sources, including grants and loans.  Whether or not grants get applied before either parent contributes is a no-brainer (they do), but does the mere availability of student loans mean that the judge must consider whether the child should assume his/her own student loans?  Technically, the judge does not have the authority to obligate the child to assume a student loan – the divorce action was between the parents and the judge only has jurisdiction to obligate the parents to do things.  However, the court really doesn’t have to say anything about what the child does/doesn’t have to do; instead, the court could obligate the parents to pay an amount that would leave a balance to be paid in another way, i.e. through student loans.   Accordingly, the judge should be informed as to what loans are being offered by the school to make up any deficiency between the total bill and what the parents are able to contribute after grants/scholarships and college savings funds are applied.

Another question is whether the court has the ability to obligate the parents to assume loans, like Federal Parent Plus Loans, to pay for the costs of tuition.  Whether that is a realistic possibility boils down to whether the parents can actually afford to take on loans given their incomes, expenses savings, debt, etc.  While it is unlikely that a court would obligate a parent to take on loans to pay for college themselves, it is not out of the question.

An important reminder about financial affidavits:  your expenses show the court whether you’re living on a shoestring budget or not.  If you’re barely able to make ends meet and your expenses aren’t extravagant, it is a fair argument that that parent shouldn’t be obligated to put him/herself into the red every month just so that their child can go to college.

As you may have gathered after reading this, what a judge will do with issues concerning college support are incredibly complex and require the skill of a trained attorney in order to effectively address.  If you are having issues with your ex about sending your child to college, please give Attorney Raymond a call and schedule a consultation.