Massachusetts
child support law allows for payment of child support until age 23 if
the child attends an undergraduate college. Judges can also order
parents to pay for the cost of college. This has resulted in onerous
orders where parents are ordered to pay significant college costs as
the cost of private college has skyrocketed past $50,000.00 or
$60,000.00 per year. This does not include the cost of weekly child
support payments which usually continued until emancipation of the
child.
In
Massachusetts, court orders for child support are governed by child
support guidelines which are reviewed an re-promulgated every four
years. The latest version of the Child
Support Guidelines
took effect on September 15, 2017 and for the first time address
college expenses and child support during college.
In the movie Pirates
of the Carribean
there exists a “Pirate Code.” The code is described as “more
what you'd call 'guidelines' than actual rules.” In contrast, the
Massachusetts Child Support Guidelines are more like actual rules
than guidelines. It seems rare that judges enter an order that does
not strictly follow the guidelines. As a result, the new Guidelines
which finally address college should give relief to parents who see
the skyrocketing cost of college as a path to financial ruin. The
new Child Support Guidelines address both weekly child support and
college expenses.
Weekly child support.
According to the Guidelines, child support should
continue to be paid while a child is in college and living primarily
with a parent. However, child support is reduced for a child in
college by twenty percent (20%). The child support guidelines have
tables to calculate the amount of child support while incorporating
this reduction. The tables address various combinations of children
in and at home so a family that has three children can calculate the
total amount of weekly child support whether is one, two, or three
children in college and younger children still fully dependent on the
parents. The result is that the child support payments are decreased
even if younger children live with the recipient parent.
College expenses
When making an order for payment of post-high school
education costs, the court has to consider a number of factors
including the cost of the post-secondary education, the child’s
aptitudes, the child’s living situation, the available resources of
the parents and child, and the availability of financial aid. This
means that parents can argue that the educational program is not
appropriate for the child as well as arguing that the parents lack
resources to pay for college. Litigation may focus on high school
performance and attendance and grades in the first year or two of
college as a measure of a child's aptitude.
The guidelines state that “[n]o parent shall be
ordered to pay an amount in excess of fifty percent of the
undergraduate, in-state resident costs of the University of
Massachusetts-Amherst, unless the Court enters written findings that
a parent has the ability to pay a higher amount.” A judge can
still order a parent to pay 100% of college costs at a private
college but must make specific findings concerning the parent's
ability to pay this amount. Since this is a new concept in
Massachusetts Courts there are no cases that help parents understand
when they have the ability to pay these increased costs. At this
time, it is likely that Judges will focus on parent's net income and
net assets rather than on expenses and liabilities. Parties should
not be able to manipulate their expenses and liabilities to avoid
paying for their children's education. It is easier and simpler for
Judge's to assume that parties may be manipulating expenses and
liabilities rather than try to understand the necessity of each
expense and the history for each liability.
The
Guidelines define college costs to limit litigation. College costs
are defined as mandatory fees, tuition, and room and board for the
University of Massachusetts-Amherst, as set out in the “Published
Annual College Costs Before Financial Aid”
in the College Board’s Annual Survey of Colleges. The University of
Massachusetts-Amherst was designated as the benchmark for maximum
orders because it was the flagship, and most expensive, Massachusetts
state college when these guidelines became effective. Other expenses
such as transportation, books, computers, cell phones, clothes,
linens, SAT exams, application fees etc. are not addressed by the
child support guidelines. It is logical to assume that these should
be paid by the parent with whom the child primarily resides.
While
the Child Support Guidelines use UMass Amherst as the benchmark for
costs, the cost of the school has to be introduced into evidence at
trial. The language of the Child Support Guidelines indicate that
Judges should accept a printout of the “Published
Annual College Costs Before Financial Aid”
in the College Board’s Annual Survey of Colleges as evidence or
take judicial notice of the information on the web page. A party
intending to introduce this as evidence should provide the opposing
side with a copy of the information well in advance of the court
hearing as the Judge may refuse to consider the information in the
absence of notice to the other side.
College
expenses and child support for children attending college can be
complicated matters. The new child support guidelines finally
address these matters but they still allow Judges to deviate from the
Guidelines by making written findings. An experienced divorce
lawyer should be able to give
individuals guidance on how a Judge is likely to apply the
guidelines.
