From the Family Law Letter July - August 2003

Emerging Law:

Paying for College After Divorce

Traditionally in New Hampshire, court-imposed child support obligations have ended when a child reaches age 18. For most of us, this coincides roughly with high school graduation. Beyond that age, our pioneer forebears considered their offspring to be adults. And in pioneer days, they probably were.

But our Internet-wired, bio-engineered, post-Monica world is far more complex than the world Daniel Webster lived in. Today, many see college as essential for a good start in life—and eighteen-year-olds as kids. Recent New Hampshire Supreme Court decisions suggest Granite State law may be catching up with these societal changes, and the horizon for court-ordered child support may be expanding.

By statute, court-ordered child support in New Hampshire ends when a child turns 18 or finishes high school, whichever is later, unless a court extends it. The law in most other states is similar. But data compiled by the National Conference of State Legislatures (1999, updated October, 2002) indicate seven states extend support to age 21 or beyond by statute, in some cases conditioned on continued educational enrollment. In Massachusetts, for example, child support may continue to age 23 for a child attending college who is principally dependent on parents for support.

New Hampshire Courts have the authority to order divorced parents to contribute toward the educational expenses of their adult children consistent with their means. RSA 458:17, LeClair v. LeClair, 137 NH 213 (1992). In fact, a standard paragraph required in every final order for divorce concerns payment of private and post-secondary expenses for the parties’ children. Yet as a practical matter, such payment has rarely been agreed upon by the parties or ordered by the court unless college application or enrollment is imminent.

Many non-custodial parents look forward to the end of child support as a time to regain control of their lives and finances, and do not relish the thought of having to contribute to college. But unfortunately, children of divorced parents in New Hampshire who wish to attend college have often had to negotiate with at least one of their parents to get support, particularly where that parent may have remarried and now has a new family to support.
If a child is already in college at the time of the divorce, RSA 458:20 allows the court to require a portion of the property of the parties to be placed in a separate fund or trust to be used for college expenses. But even if the parents have not made adequate provision for college expenses in their original divorce, New Hampshire courts will allow a parent to come back to seek contribution from the other parent when college becomes “reasonably foreseeable” for their child.

While the court did not define the age at which college becomes “reasonably foreseeable,” it is reasonable to presume this happens when a student decides to apply for college. This may occur during the junior or senior year of high school, or possibly later, provided the young person is not emancipated (living away from home and self supporting).

Last year, the New Hampshire Supreme Court defined educational expenses that a court may require a divorced parent to pay as “those expenses that are directly related to the child’s college education” including “tuition, books, room, board and other directly related fees.” In Re Gilmore, 148 N.H. 111 (2002). The Court excluded such items as an allowance, transportation (even if the child was living at home and commuting to school), medical expenses and clothing, and limited court-ordered room and board payments to no more than the college would charge, to be paid to the college for on-campus housing, or to the student for off-campus housing.

Finally, in a case decided by the New Hampshire Supreme Court this April, a non-custodial parent appealed a trial court’s order to continue paying child support to the custodial parent while their daughter attends college, arguing that the trial court could order the parties to pay college expenses but could not order child support payments after their daughter’s high school graduation. But the Court held the trial court could order both kinds of payments. “The trial court may order the parties to contribute to the costs of post-secondary education and/or may order the non-custodial parent to continue paying child support to the custodial parent, if doing so ‘is equitable in light of the circumstances of all of the parties.’” In Re Breault, _ NH _ (2003), 821 A.2d 1118; 2003 N.H. LEXIS 52 (April 22, 2003).

These cases establish that New Hampshire courts have broad discretion to order divorced parents to pay college expenses, and even child support in appropriate situations, while adult children attend college. Moreover, they signal a policy shift that may continue in the future. If you are a divorcing or divorced parent of a child who is attending or is likely to attend college, you may wish to meet with an attorney experienced in family law to discuss how best to handle college expenses in your situation and to consider whether it may be appropriate to seek a court order, or modification of a prior order, to provide for this.