A Look at College Expenses in a Divorce

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Important Tips to Know for Requesting Contribution for College Expenses in Indiana

In addition to a normal child support order, one or more parties may request that the court order them to contribute to the postsecondary educational expenses for a child.  Whenever there are divorced parties or parties to a paternity action with one or more minor children, the court will always issue a child support order based upon a calculation using the parties’ gross weekly incomes and other factors, such as who pays the health insurance premiums, whether there are work-related daycare expenses, and the amount of overnights each parent has.  However, unlike traditional child support, an order for payment of college expenses is not always a guarantee.

Factors Considered

The Indiana Code defines the factors a court considers when determining a request for contribution for postsecondary educational expenses:
Indiana Code 31-16-6-2: Expenses for child’s education and health care; Title IV-D fees Sec. 2(a) The child support order or an educational support order may also include, where appropriate: (1) amounts for the child’s education in elementary and secondary schools and at postsecondary educational institutions, taking into account:
(A) the child’s aptitude and ability;
(B) the child’s reasonable ability to contribute to educational expenses through:

(i) work;
(ii) obtaining loans; and
(iii) obtaining other sources of financial aid reasonably available to the child
and each parent; and

(C) the ability of each parent to meet these expenses;

When considering the “child’s aptitude and ability”, a court can consider evidence regarding the child’s likelihood of succeeding at a particular college or postsecondary educational institution.  For example, if the parties have a child who had well-above average grades, as compared to a child with near failing grades, it will be more likely that the court will order the parties to contribute to such expenses.

The courts will also sometimes order the parties to cooperate with one another and have the child apply for all grants, scholarships, financial aid and loans that may be available to him or her.  A court will want to keep the costs of such expenses as low as possible for all parties involved and so will make such an order if there is a grant, scholarship or financial aid potentially available.  If the child has traditionally worked, whether full-time or part-time, or has some other form of income, it is also possible that the court will order the child to contribute toward his or her own expenses to some degree.

One very significant factor the court considers is the ability of each parent to meet college expenses for a child.  The parties will present evidence of his or her respective incomes and reasonable living expenses and the court will determine if the parties have disposable income that can be applied toward college expenses.  If a party is found to be employed to his/her fullest capacity and he/she doesn’t have much or any money left over after paying for reasonable living expenses, it is far less likely that a court will order that party to contribute toward the child’s college expenses.

However, on the other spectrum, for a party whose income far exceeds his/her reasonable living expenses, it is much more likely that a court will order that party to contribute.  The amount each party is ordered to pay is fact-sensitive and so it may vary from one party to the next depending upon the amount of disposable income each party has, along with considering the other factors outlined in the statute.

Typical Postsecondary Educational Expenses

In most cases, typical postsecondary educational expenses include tuition, room and board, and school books and fees.  However, when the state legislature reduced the age of emancipation for child support purposes from 21 to 19 years of age on July 1, 2012, many courts now consider health insurance premiums and uninsured healthcare expenses to be a postsecondary educational expense, especially if it is a requirement of the educational institution for a child to have health insurance in order to attend.

Typically, a court will order college expenses to be paid according to the costs of an in-state, state-funded institution unless the parties agree otherwise.  For example, state-funded colleges or universities are traditionally far less expensive than a private university where the tuition rates can be more than double.

The parties can, by agreement, include other expenses in the order that they wish to cover for the child, including cell phones, transportation costs, groceries, and entertainment, but a judge may not likely order such expenses except in rare cases.

If you are the non-custodial parent who has been ordered to pay child support, it is important to know that you should also consider modifying your child support obligation when litigating contribution for postsecondary educational expenses.  According to Indiana Code 31-16-6-2: (b) If the court orders support for a child’s educational expenses at a postsecondary educational institution under subsection (a), the court shall reduce other child support for that child that:

(1) is duplicated by the educational support order; and

(2) would otherwise be paid to the custodial parent.

For example, if you are ordered to contribute toward the room and board for the child’s college and the child will not be residing with the custodial parent for the majority of the calendar year, then the custodial parent’s overnights with the child will be significantly reduced.  Therefore, it would be inequitable for the noncustodial parent to pay for room and board while at the child is at college and to also pay support as if the custodial parent was housing and feeding the child for the same amount of overnights as before the child began attending college.

Timing for Requesting Contribution for Postsecondary Educational Expenses

The parties can make an agreement at any time during a child’s life regarding how the parties will contribute toward a child’s postsecondary educational expenses.  However, a court will normally not entertain this issue until the child is in his/her last year or 2 of high school.  The theory behind this is that if a court makes such a determination when the child is still young, there can be numerous changes in circumstances that occur between the date of the order and when the child actually begins attending college.  For example, a party may have been earning a very comfortable living when the child was young, but then later lost his/her job at no fault of his/her own.  If the party diligently searches for similar employment and can’t find a job with a comparable income, then that party may be unable to contribute toward college expenses based upon an order from several years prior.

It is important to know, however, the age at which it may be too late to petition the court for contribution to postsecondary educational expenses.  When the state legislature modified the emancipation age from 21 to 19 years on July 1, 2012, it also modified the age by which a parent can request an order for college expenses.  The amended statute now gives guidance on this issue.
Pursuant to Indiana Code 31-16-6-6, if a court has established a duty to support a child in a court order issued before July 1, 2012, the:

(1) parent or guardian of the child; or

(2) child; may file a petition for educational needs until the child becomes twenty-one (21) years of age.

However, if a court has established a duty to support a child in a court order issued after June 30, 2012, the:

(1) parent or guardian of the child; or

(2) child; may file a petition for educational needs until the child becomes nineteen (19) years of age.

However, there is one grey area that was recently clarified in Neal v. Austin, 20 N.E.3d 573 (Ind.Ct.App. 2014).  In this case, the parties got divorced pursuant to a settlement agreement in 2000, far before the amended statutes of July 1, 2012.  However, on July 17, 2012, just a few days after the amended statutes went into effect, the parties entered into an agreed entry modifying father’s child support obligation.  The issue was whether the parties had until the child reached the age of 19 or 21 years to file a petition for contribution toward college expenses.  The court held that although the original support order entered during the divorce was before the amended statutes, the most recent support order was entered after July 1, 2012, and so the parties should have been put on notice of the amended statutes.  As such, the court found that the parties had to file such a petition before the child turned 19 years of age.  Thus, regardless of whenever your case originated, you need to file the petition before your child turns the age of 19 if you ever had a child support order issued by the court at any time after June 30, 2012.

Contact Indiana Family Law Attorneys Today

If you are thinking about a divorce, child custody, or support case, the experienced family law attorneys at Banks & Brower, LLC can help you. Contact us online, give us a call at (317) 870-0019, or email us at info@banksbrower.com.  We are available to take your call 24/7/365.