From the Family Law Letter September - October 2003

Emerging law:

Update on College Expenses

Debate is heating up in the Granite State on whether our courts should have the authority to order divorced parents to pay for their children’s college expenses—a topic featured recently in the New Hampshire Family Law Letter (Paying for College After Divorce, July – August 2003). In an article published by the Manchester Union Leader, the Boston Globe, and other papers nationwide (States Differ on College Fees in Divorce), Associated Press National Writer David Crary writes of divorced New Hampshire dad Alexander Duran. Delighted when his daughter was admitted to two fine colleges, Duran was miffed when a judge ordered him to pay $6,000 yearly for her college expenses at Brown University instead of $3,000 for Brandeis, which offered more aid.

Duran is not alone. Court-ordered payments for college expenses are a burden for many noncustodial divorced parents. And while the law is gender-neutral, those bearing this burden are usually dads. Responding, it appears, to their concerns, Rep. David A. Bickford (R., Strafford) introduced House Bill 299 in the New Hampshire Legislature this January “removing judicial discretion to order a divorced parent to contribute to an adult child’s college expenses.” (Bickford, by the way, was the original sponsor of legislation that established the New Hampshire Commision on the Status of Men two years ago—a first in the nation.) The House passed HB 299 in February; in April it was introduced in the State Senate, where it has been referred to committee.

In a September 17 editorial (Divorce and college: Higher education is a right for no one) the Manchester Union Leader urges passage of HB 299, arguing that court-ordered college payments—a state intrusion we do not allow into the lives of married parents—should be equally impermissable where divorced parents are concerned. We think this argument carries real weight. But two days later, the Nashua Telegraph answered with its own editorial (Allow courts to order college cost payments) arguing that the Legislature should stop short of “wiping out any responsibility for a divorced parent to provide financial aid to college-bound children” and instead “examine possible guidelines to set limits on such orders.” Children of divorced parents, the Telegraph concludes, “have little say when their parents split, but a divorce shouldn’t be an excuse to deprive them of a secure future.”

A significant minority of states (17 at last count) have given their courts discretion in this area. Effective October 1, 2002, for instance, a new Connecticut law (P.A. 02-128) authorized that state’s courts to require divorced parents to pay their children’s college expenses. In view of this potential intrusion into our private lives, what public policy agrument can justify such a distinction between married and divorced parents?

One answer comes from a landmark study that tracked 93 children of divorced parents for twenty-five years. One finding (among many): 80 percent of children in intact families get parental support for college expenses, while only 29 percent of children of families with divorced parents get the same support (Wallerstein, Judith S., et al, The Unexpected Legacy of Divorce: A 25 Year Landmark Study, Hyperion Press).

Without question, this is a complex public policy issue—and the political process whereby a free society balances such conflicting goals is at work right now in New Hampshire. If you have an opinion, join the debate. For our part, we prefer not to see this as a men’s or women’s issue, although it is hard not to see it as a children’s issue.

So, where do we stand? As attorneys experienced in and commited to the practice of family law, we stand with our clients, of course. We advocate for the rights of each, one at a time.

But we also counsel our clients. Often, our counseling involves the well-being of their children, which can be especially hard for divorcing parents to balance with their own. So we work to help each client find this balance, to learn to cooperate with their divorcing spouse where their children are concerned, and to solve problems through constructive negotiation instead of litigation whenever possible. And when we succeed, these competing interests seem somehow to converge in the long run.