How College Expenses Affect Child Support in Massachusetts

Massachusetts divorce lawyer Nicole K. Levy provides an overview of how child support is affected by college expenses in Massachusetts.

UPDATED 3/17/17. As discussed in my last blog, in Massachusetts, the rules about child support become increasingly vague after a child turns 18 and graduates from high school. But what about child support for children attending college? It is no secret that college costs have exploded over the last three decades, and for parents already paying child support, the additional cost of college can be crippling.

The Massachusetts statutes for children of married and unmarried parents authorize child support to continue after a child reaches the age of 18 and limit support for children over 21 years old. However, there is no clear formula governing how much support should be paid for adult children, much less adult children who generate the added expense for parents of college attendance. The Child Support Guidelines provide some guidance on the of post-minority support; however, there is large gaps when it comes to defining child support, setting the amount, and reviewing the impact of contributions to college and/or higher education should have on child support paid to a parent.

The Child Support Guidelines state as follows:

In establishing support orders for children over age 18, to the extent permitted by law, the Court shall exercise its discretion in ordering support and/or college contribution. The Court shall consider the reason for the continued residence with and dependence on the Recipient, the child’s academic circumstances, living situation, the available resources of the parents, the costs of postsecondary education for the child, the availability of financial aid and the allocation of those costs, if any, between the parents. Contribution to college costs is not presumptive, but is based upon the above factors. If a specific college contribution is ordered, this contribution shall be considered by the Court in setting the weekly support order, if any. (Emphasis added)

While the Guidelines set out numerous “factors” for the court’s consideration, the bottom line is that this analysis is completely discretionary. There is no formula, and this leaves parties with more questions than answers, the first of which being, should parents be obligated to higher education, and if so, how much.

UPDATE (8/15/17): To read about the changes to college expenses under the 2017 Massachusetts Child Support Guidelines, check out our new blog on the subject.

Table of Contents for this Blog

College Savings: Can Courts Order Parents to Save for their Children’s College Expenses?
Should Parent who Contributes to College also be Required to pay Child Support to the Other Parent?
A Common Scenario: Child Support Continues to One Parent, but Both Parents Contribute to College
How Much Should Parents be Required to Pay Towards College?
The “Third-a-Third-a-Third” and UMass Cap Standards
UPDATED 3/17/17: McClelland v. McClelland Continues Ambiguous Relationship Between Child Support and College Expenses

College Savings: Can Courts Order Parents to Save for their Children’s College Expenses?

The case law addressing the intersection between college expenses and child support in Massachusetts is spotty at best. One overarching rule, as noted in the 2004 case Lang v. Koon (2004), is that support orders that address the future payment of post-high school educational costs are premature for younger children. While courts may address the cost of higher education for children attending (or about to attend) college, Lang and subsequent cases argue against the entry of orders requiring “college savings accounts” for parents of younger children. Thus, it is not uncommon for judges to order parties to communicate regarding college expenses by a child’s junior year in high school, at which time either party may file a Complaint for Modification if the parties cannot agree on apportioning the college expense.

Should Parent who Contributes to College also be Required to pay Child Support to the Other Parent?

The most challenging question in cases involving college expenses in whether a parent should be required to pay both a large share of the child’s college expense and child support to the other parent. The waters here are murky, as there are quite a few variables to analyze, such as the parties’ respective income, the cost of college, and the designated contribution, if any. There is also a factual analysis that needs to be done surrounding the child’s living arrangements, the child’s own contributions, and so forth. So not only does a court need to determine if a parent’s college contribution should affect child support, a judge also may look into some complicated facts surrounding each child’s circumstances.

In Massachusetts, the general consensus seems to be that child support should continue to be paid to a parent, even if the paying parent is also contributing to college. The larger the parent’s contribution to college, the better his or her argument will be that he or she should receive some relief in the form of reduced child support. The main question here is one of proportion. If a parent who makes $100,000 per year is already paying $20,000 per year in child support for one child, then a judge may view an additional order requiring the parent to pay more than $10,000 per year towards college to be oppressive. However, if the judge in the same case also ordered the child support recipient to contribute $10,000 towards college, then the order suddenly seems less onerous for paying party.

When forced to choose between continuing a child support order and requiring one or both parents to contribute to college, many judges will opt to continue the child support order. The basic idea is that college costs vary widely from school to school, and even children who must borrow 100% of their college expenses can generally find a school to attend. In contrast, a parent who depends on child support to keep a roof over the head of themselves (and the child) has no such flexibility. For parents with strong financial resources, many judges will continue the child support order and require contributions to college from one or both parents based on the perceived available resources each parent has after basic living expenses.

A Common Scenario: Child Support Continues to One Parent, but Both Parents Contribute to College

In the absence of any clear rule (or even consensus) on how college expenses should affect child support, a common scenario that practitioners see is that a court orders one parent to continue paying regular weekly child support to the other parent, but requires both parents to contribute to college. When apportioning the college cost, judges take different approaches. Some judges believe that the college expense should be split equally (50/50) if one parent is paying child support to the other consistent with the Child Support Guidelines. Other judges will look at the parties’ “net incomes after child support” – i.e. how much income each party has available, taking into account child support paid/received by each parent – and apportions the college expense based on the parties’ respective resources. (For example, if one party earns $100,000 per year and pays child support of $20,000 to the other parent, who is unemployed, the judge might order the parties to split college at 4-to-1 ratio, where the payor has $80,000 in income and the recipient has $20,000 in income after child support is paid.)

How Much Should Parents be Required to Pay Towards College?

One source of consternation for divorced parents is that a court can order them to contribute to a child’s college expense, while married parents can decline to contribute anything to their children’s college costs. For economically challenged parents, a court order requiring payments of $10,000 or more per year towards college can be utterly crippling. Unfortunately, the legal standard for what constitutes a “reasonable” college contributions by parents offers many factors but little certainty. In Mandel v. Mandel (2009), the Appeals Court articulated a long and detailed list of considerations in determining college expense contributions:

In determining whether college expenses are reasonable, courts have appropriately considered “all relevant equitable factors.” Hamilton v. Pappalardo, 42 Mass. App. Ct. at 477. These factors include “the financial resources of both parents, the standard of living the child would have enjoyed if the marriage had not been dissolved, the financial resources of the child, … the cost of the school, the programs offered at the school, the child’s scholastic aptitude, how the school meets the child’s goals, and the benefits the child will receive from attending the school.” Schmidt v.Schmidt, 292 Ill. App. 3d 229, 237 (1997). See Hamilton v. Pappalardo, supra (factors to be considered include educational needs of child and financial circumstances of parents); Brooks v. Piela, 61 Mass. App. Ct. 731, 737 & n.8 (2004) (“[C]hildren’s needs are to be defined, at least in part, by their parents’ standard of living,” which in some cases “includes the ability to provide certain opportunities … such as private school education”); Massachusetts Child Support Guidelines, principles par. 1 (2009) (encouraging “joint parental responsibility for child support in proportion to, or as a percentage of, income”).

Also relevant to the inquiry is “the extent to which [a party] unjustifiably may have been excluded from the [college] decision-making process.” Hamilton v. Pappalardo, supra. Conversely, a party who has sat on his or her right to intervene, or to seek approval from the court when the parties disagree, until the college selection process has been completed, may have waived his or her right to object to the college and its concomitant cost.

The “Third-a-Third-a-Third” and UMass Cap Standards

Nature abhors a vacuum, and judges abhor a rule. Translation: if no rule exists, judges will try to invent one. In Massachusetts (and no doubt elsewhere), two common sense standards have emerged as accepted approaches for apportioning college expenses. The elegantly named “third-a-third-a-third” standard simply posits that the child, mother and father will contribute 1/3 of the cost of college each year, with the child expected to borrow this sum in student loans. Meanwhile, the “UMass cap” standard provides the obligation of parents to contribute to college will be capped each year at the c ost of room, board, tuition and fees at UMass Amherst for that year. In many cases, these two standards will be combined, so that each parent’s contribution to college is capped at 1/3 of the cost of UMass in that year, even if the child elects to attend a more expensive private school.

Both the “third-a-third-a-third” and “UMass cap” standards are rules of thumb; in other words, they provide a starting point from which parties and judges can work towards resolving college expenses. Economically challenged parents will find even 1/3 of the cost of UMass (currently $8000+ per year) overwhelming. On the other hand, a judge may feel that very wealthy parents who insist on “capping” their contributions based on the cost of UMass are shortchanging children who could afford attend more expensive private colleges. No matter how much we wish for one, there is no formula, and there is no definitive answer to how much parents should contribute to college or how contribution to college affects child support payments. This analysis can be extremely factually intensive, and unlike the Child Support Guidelines, often examines far more than the parents’ income. Given that a judge has huge discretion to determine these issues, a skilled attorney is especially important.

UPDATED 3/17/17: McClelland v. McClelland Continues Ambiguous Relationship Between Child Support and College Expenses

A recent unpublished opinion of the Appeals Court, McClelland v. McClelland (2017), highlights the continuing ambiguity between college expenses and child support in Massachusetts. In McClelland, the former husband filed a complaint for modification seeking a reduction in his child support (equal to 19% of his gross income) and alimony (separately 19% of his gross income) obligations due to reduced employment and other changes.

Prior to trial, the parties agreed that they would each contribute 1/3 of the cost of the children’s education. However, because they could not agree on child support and alimony, the matter proceeded to trial on those issues. The case was heard by Hon. Randy J. Kaplan, then of the Essex Probate and Family Court.

At trial, evidence was presented indicating that the former husband has misled the court about contributions his mother had been making to the children’s educational expenses during prior rounds of litigation. In other words, the former husband’s mother was paying for the children’s education, with the husband perhaps taking credit for these expenditures as if they were paid by him alone. Apparently in response to this history of alleged dishonesty, the trial judge unilaterally modified the parties’ agreement on college expenses, making the former husband 100% responsible for the college costs moving forward. In addition, the judge increased the husband’s child support obligation and terminated his alimony obligation.

On appeal, the Appeals Court criticized the increase in child support, noting:

respect to the modification of child support, the judge did not adequately explain what material and substantial change in circumstances warranted increasing the father’s obligation, particularly in light of the fact that her findings appear to point to the need for a downward modification. …. The judge found that, due to the eldest child’s emancipation and the fact that the younger two children no longer reside with the mother for the better part of the year, “appropriate reduction in support [was] warranted.” She also appeared to credit the father’s evidence that his weekly income had decreased. …. Despite these indications that the father’s payments should decrease, the judge increased the child support obligation to twenty-five percent of the father’s gross weekly income without further explanation.

With respect to the judge’s unilateral order for the husband to pay 100% of the college expenses, the Court held:

The father argues that the judge abused her discretion in raising sua sponte [i.e. unilaterally] the issue of education expenses. Seeing no reason for the judge to disturb an agreement with which both parties apparently were content, we agree.

In Purdy v. Colangelo (2004), this court held that where the parties’ earlier agreements were silent on the issue of allocation of education costs and neither party had sought modification, “exceptional circumstances would be required” for the judge to issue a discretionary order for such expenses after the child had graduated. We have before us arguably an even more forceful case for judicial restraint. The parties here had in fact resolved the matter of education costs, and the judge’s sua sponte order thus effectively created a dispute where none otherwise existed.

The mother is left to argue that by seeking a reduction in child support, the father opened the door for the judge to consider education expenses. … It is true that education costs may be considered in connection with child support. … However, it does not follow that these costs must or even should be dealt with jointly, especially where, as here, neither party requested this and the parties historically had allocated education expenses through a separate arrangement, which was not affected by changes in the support order. The mere fact that a modification of child support was again on the table was not sufficient reason for the judge to overhaul an existing agreement that apparently satisfied both parties.

Obviously, the facts of the McClelland case are unique – particularly the husband’s alleged history of dishonesty about educational expenses. However, the several parts of the opinion still stand out:

1.) Child Support and College Expenses are Related but Separate – It seems clear from the McClelland opinion that the trial court judge assumed that child support and college expenses are so closely related that a trial on child support opened the door to an adjustment of college expense allocation. The Appeals Court makes clear that although child support and college expenses are closely related, there is enough a distinction between the issues that they should not automatically be considered “jointly” by a judge. Rather, each issue must be separately presented, and an agreement on college expense may stay in place, even if child support changes.

Interestingly, the Appeals Court sited Purdy v. Colangelo (2004), a case in which the Appeals Court held, noted, “our cases have not addressed the issue whether an order to pay the cost of education is an order modifying a previous support order for purposes of [G. L.] c. 119A, § 13(a)”. Purdy was similarly cited in another recent unpublished 2014 case, Pagano v. Dolaher (2014), which also cited Hamilton v. Pappalardo (1997) (noting an exception when “the parties expressly and intentionally omitted making provision for the education of their children [and] . . . agreed” that they would submit the matter to the court to determine responsibilities if the parties could not reach an agreement in the future).

The fact that Massachusetts still has not resolved whether a modification of college expenses is a modification of child support – or something altogether different – illustrates the continuing ambiguity surrounding these issues.

2.) Agreements on College Expenses Matter – The other issue that McClelland makes clear is the importance of agreements for college expenses in Massachusetts. While the Guidelines provide a clear framework for adjusting child support up or down based on changes in either party’s income, McClelland tells us that agreements for college expenses are likely to be more binding, and less easily modified once entered.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.