College Costs in Child Support and Divorce in New York

The college application process can be a daunting thing notjust for aspiring students, but also for the parents that hope to support their children’s education. When it comes to children of divorce, the concerns regarding which schools to apply for and what courses to take can extend to additional worries about which parent should be expected to pay the ongoing expense of tuition, room and board, books, travel, and the rest of it.   In New York, the rules regarding college costs for child support cases or following divorce are often impacted by something called the “SUNY” cap. The SUNY cap is a concept commonly used by the New York courts to address the issue of how college education should be paid for. Parental payment for their children’s college isn’t automatic in the state of New York, the trend has been for courts to use a more child-friendly approach to financing college education.

The legislature has codified in the Domestic Relations Law and Family Court Act that courts need to order parents to contribute to a child’s college education, depending on the circumstances at hand, and the child’s best interests.  The cases have held that this determination is done according to the parent’s ability to pay, the expectations the parents had for the children (such as their own educational backgrounds), and the children’s academic abilities.

In New York, it’s generally quite common for separating or divorcing parents to come to an agreement in their settlement regarding how college expenses should be paid with the help fo their child support lawyers.  Sometimes the college payment responsibility issue is put off until such time as the child or children are approaching college age.   In some instances, the divorcing parties will agree to split the cost, or pay it according to their pro-rata shares (percentage of their income to the combined parental income) associated with helping a child pursue higher education regardless of where the children go to school (private school, public school, in state, out of state). In most circumstances, however, the parties will limit their obligation to pay for college education to a percentage of the cost of any State University of New York education. In other words, the “SUNY” cap limitation is put in place. The SUNY cap means that the financial contribution of both parents is limited to the rate it would cost for a child to attend a New York state university. However, this doesn’t necessarily mean that the child wouldn’t be permitted to attend a private school or out-of-state school. Instead, it simply suggests that whatever education the child pursues, it should be capped at the SUNY rate.

Unfortunately, simply saying that you plan to use the SUNY cap in a child support or divorce situation may not be enough to address the concerns of educational payments. This cap doesn’t necessarily address all manners itself, and would leave interpretations, questions, and future debates open in the future. Importantly, in order for the SUNY cap to be clear, parents will need to determine a number of different things, including which SUNY the cap is set by. After all, there are dozens of different schools in the SUNY system, and some of them have tuition expenses that are several thousands of dollars cheaper or more expensive. The more broad the language in the agreement is, the more likely it is that problems may occur surrounding interpretations. It’s also worth noting that in some cases, the parties place an amount beyond the cap “to be determined” on college costs. This means that there is no SUNY cap presumption, but only an option applied if it’s drafted in the agreement of the parties.

Importantly, parents will need to define the timing of the SUNY cap, because expenses will vary according to when the children are attending college – expenses increase over time. What’s more college costs will often go beyond standard tuition fees. There are also expenses to consider for books, board, room, and other costs. If the parties intend for those to be included, they will need to address that with their child custody lawyer in detail. If room and board are included in the costs of the college education, then the paying parent could be entitled to something called “Rohr’s credit”, or a dollar for dollar reduction from child support payments against what they are paying in board and room.

Residence away from the home during college won’t often be an emancipating event for child support purposes – particularly when the child often returns home during breaks from school to the residence of the custodial parent. However, if the child moves away from home entirely and does not return home during breaks, then this might be seen as an emancipating event to terminate child support payments to the other parent.  The child, however, might still have the right to child support in that instance.

Various forms of financing may need to be considered too. For instance, you may need to address with your divorce attorney how college savings will be used (such as 529 plans and similar). Many court orders and agreements suggest that savings allocated for the child must be used before requiring a parental obligation. Additionally, parties will need to address whether any grants or scholarships go towards the defraying of the child education costs, or offset the respective parents’ payment responsibilities. A parent may also have to pay for student loans unless it is specified that the child will need to take out loans that bridge the gap that the parents cannot cover for educational costs. In some cases, a parent may have to pay the child’s student loans for college in proportion to their share unless it is specified that the child is responsible for the loans that they access.

Of course, it’s also worth making sure that both parties in the divorce are clear on when the support period ends. Not all children will attend college for four years – though that is common. Sometimes, a student may be learning for a period of two or six years instead. Child support will traditionally only last up to the age of 21, but many students pass that age in a four-year plan, so it must be specified in the agreement with the parents will be covering their child to a certain age.  Commonly people agree to extend child support to 22 years of age provided the child is still enrolled in college.  This extension can only be done by a voluntary agreement.  Once that agreement is formally made, however, it is binding.

To learn more about child support, and paying for child educational fees, contact me at (516) 333-6555, or via my handy contact form.

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