When Must Divorced Parents Pay for College?

Jeffrey and Paula Oligny had two children and were divorced in 2003.  Under their divorce they were to “equally contribute” to college expenses only after the children “exhausted all forms of scholarships, loans, grants, etc.”

When it came time for college both children were able to obtain some financial assistance but not enough to cover their entire tuition.  The mother paid for the remaining portion of the tuition but the father did not. Instead, he offered to co-sign with the children a loan for the remaining portion of their tuition. He claimed that this offer to co-sign met his responsibility.  According to the father, the children were required to exhaust all possible loans before getting cash assistance from their parents, and this should include co-signed loans.

The New Hampshire Supreme Court did not see it the father’s way, and ordered that he must share in the tuition expenses from his own pocket, not merely by co-signing. The way the Court saw it, the children were only required to exhaust all possible options that they could themselves obtain. Since a co-signed loan was something by definition they could not obtain on their own, it was not necessary for them to get such a loan before getting cash assistance from their parents.

This case raises a number of interesting issues that all spouses with minor children going through a divorce should consider. First, should any contribution to college expenses be required?  This is largely going to depend on the financial means of the parents.  Society expects high-income parents to help pay for their children’s college expenses.  Parents who make little money, however, cannot be expected to help pay for college expenses when tuition alone may be greater than their annual income.

New Hampshire used to allow courts to require parents to pay for their children’s college expenses with no restriction. However, in 2004 that was changed. Under the current law, the court can only require that parents pay for college expenses if both parents agree.  Other states are different and still allow courts to require college contributions, even if the parents don’t agree.

This case also demonstrates the importance of clear language in a court order.  The vast majority of court orders in divorce cases are drafted by the parties. They are then approved by the court with little or no changes.  So the parties have a great deal of influence on the language in the court order.  It is important to make the terms as clear as possible so that both parties understand exactly what their rights and responsibilities are.  Here, the parents obviously had a much different view about their obligation to help their children with college. This obviously led to a great deal of acrimony and litigation that may have been unnecessary if the language in the order was more clear.

Finally, although not the situation in this case, it would be interesting to see a case where neither parent wanted to contribute as the divorce order required.  In this case the mother paid the bill and then sought reimbursement from the father. But if neither parent paid could the children move to enforce the divorce order against both parents?

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