Do you, as a divorced parent, have a legal duty to pay for your child’s college education? The answer is yes, no, or maybe depending upon the state in which you are divorced.
You could be ordered to pay for all or a portion of your child’s college education if your divorce state has a law giving a court the power to award college support, also called post-secondary or post-minority support. College support may be in addition to child support, a part of child support, or a separate payment after regular child support ends. It can be used to pay for an education at a college, university, vocational school, or other type of post-secondary educational institution.
A court having the power to order college support may consider several factors when ordering you to pay for your child’s college education. Some of these factors are:
- you and your ex-spouse’s financial resources,
- your child’s financial resources,
- your child’s aptitude, ability, goals and interests,
- you and your spouse’s expectations for your child when you were living together,
- standard of living the child would have had if you had not divorced,
- you and your ex-spouse’s standard of living,
- you and your ex-spouse’s level of education,
- the post-secondary education of the child’s siblings or half-siblings,
- the nature of the post-secondary education your child wants, and
- your child’s age.
These factors vary from state to state, but logic demands that each one should play some part in the decision-making process.
Even if you and your spouse don’t get divorced in a state that has a law for some form of college support, you can agree to the payment of college support. The agreement must be in writing and must clearly and specifically describe each parent’s duties regarding the payment of college support. It may also have one or more specific limitations to act as a guide or cap. Your state may have case law (decisions from an appellate court) setting out what terms must be in a college support provision so that it can be enforced by a court, either in a separate contract suit or by the divorce court.
Examples of some types of limitations you might find in the college support provisions of a divorce agreement are:
- limiting you and your ex-spouse’s college support obligation to a maximum number of consecutive semesters, with summer or winter abbreviated schedules not counting as a semester
- capping the annual payment that you or your ex-spouse is responsible for paying
- tying each of your respective portions to the then-cost of a particular educational institution, usually a state college or university, the college the parents agree the child can attend, or the school the child is attending at the time of the agreement
- describing the items to be included as post-secondary educational expenses, such as tuition, room & board, sorority or fraternity dues, books, fees, etc.
- detailing how any grants, scholarships or student loans taken out by the child effect each of your obligations
- Describing how any educational saving accounts are to be applied to each of your obligations.
Many parents wonder what responsibility their child has regarding college if his or her parents are under a court order to pay for college. Once again, the answer depends upon the law in your state or the particular facts of your family’s situation. Some states have imposed requirements that a child must meet to qualify for college support. These requirements may be:
- acceptance and enrollment in a post-secondary educational program within a certain time period after graduation from high school,
- taking enough credit hours each semester so that he or she is considered a full-time student achieving acceptable grades in each course so that he or she remains qualified to re-enroll in the same school the following semester,
- providing a copy of grade reports to each parent,
- continued enrollment so that the college enrollment is in consecutive semesters, and/or
- attendance in the courses he or she enrolled in.
If you are ordered to pay college support for your child, don’t assume that you are relieved of the obligation if your child doesn’t qualify for your continued support based upon the items in this list. It may take either an express agreement between you and your ex-spouse or the order of a court to officially relieve you of any responsibility.
If you are the noncustodial parent ordered to pay college support, do you still have to pay your ex-spouse child support? The answer is: maybe, yes, or no depending upon your state law. In some states child support terminates, as a matter of law, when the child reaches the age of 18. In others, the age of termination is 19 or 21. Be aware though, even if your child has reached the age of termination in your state, he or she may still qualify for continued child support under certain circumstances, such as enrolling and attending a post-secondary educational program or having a physical or mental disability that precludes the child from becoming self-supporting. If you are in doubt, always consult with a lawyer about whether child support stops, is reduced, or stays the same when college support is also being paid.
When ordering post-majority support the court could decide to look at the following expenses that a custodial parent might incur for a child who is attending college:
- transportation expenses to and from school,
- living expenses while at home,
- one time expenses to buy necessary items for the child to set up a “home away from home”,
- the cost of health insurance,
- the cost of medical and dental expenses that aren’t paid by health insurance, and/or
- and any other type of expense necessary for the child’s reasonable living expenses while attending college and living away from home.
In some cases the custodial parent has to pay for the child’s college support before there is a court order instructing the noncustodial parent to contribute. In those situations, the court might have the ability to order the noncustodial parent to reimburse the other parent for all or a portion of the child’s expenses that have already been paid. Alternatively, the court could make an award of college support retroactive to a certain date. So, in addition to an order for future college support, there could also be a lump sum awarded for past support.
If you are ordered to pay both child support and college support, can you get the amount of child support reduced? After all, you’d think that the custodial parent’s costs for a child who is living away from home nine months out of twelve wouldn’t be as much as when the child lived at home full time. Some courts have said that the amount of child support should be reduced to reflect decreased expenses. Others have said it shouldn’t be reduced because the custodial parent still has costs to maintain a home, to provide transportation, and to pay for the child’s necessities. This decision is very fact specific based upon each parent’s legal obligation to pay for the child’s needs while he or she is attending college. In some cases, any expenses that you voluntarily pay might impact a court’s decision, but you need a track record to support your claim.
Can you pay your portion of college expenses directly to the school? Again the answer is maybe. It is another of those things that is very fact specific to your family’s situation.
Can you pay the child support directly to your child instead of your ex-spouse? Maybe, especially if your child is living off campus and has rent, utility, grocery and other regular bills to pay. In some situations, you may be able to pay a portion of the support directly to your child instead of the full amount. That way your son or daughter has funds to pay for direct expenses while at school and your ex-spouse receives a contribution from you toward your child’s housing, clothing, transportation and other fixed expenses.
The age of your child affects whether a court will order college support at the time of a divorce or modification. Absent an agreement between your and your ex-spouse, it’s highly unlikely that a judge will order college support for your child unless he or she is in high school.
Your child’s financial resources might make a difference in the amount of college support you have to pay. It depends upon the nature and amount of the resources. Savings, investments, trust income or assets, other liquid assets, or income from sources other than your child’s employment are some examples of a child’s money that might be used to pay college expenses. Anything left unpaid after the depletion of your child’s money could be paid by you, your ex-spouse, or split between you.
The following items are several things you can do to plan for your child’s post-secondary educational expenses:
- investigate prepaid tuition plans at your state university or college,
- invest in a Coverdell Education Savings Account,
- set up a special savings account for college expenses,
- help your child apply for grants and scholarships, or
- apply for parent loans.
Student loans will not help reduce your out-of-pocket costs as an obligated parent. Most courts won’t permit you to reduce the amount of college support you are ordered to pay by the amount your child is able to borrow. Likewise, if you have a tuition remission program available to you as an employment benefit, you probably won’t be able to use that benefit to cover your portion of the college expenses, while your ex-spouse must use money to pay for his or her portion. Courts generally rule that both parents get the benefit of a tuition remission program.
There is a very small body of law, primarily in Pennsylvania, supporting the claim that it’s unconstitutional for a court to order divorced parents to pay for a child’s college education. After all, parents who are not divorced have no legal obligation to pay for their child to receive a college education. Why should divorced parents not be afforded the same rights and protection as parents who aren’t divorced? See Curtis v. Kline, 666 A.2d 265(1995).
The following states have specific statutes or case law that give courts the authority to order college support in some form: Alabama, the District of Columbia, Georgia, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Missouri, Mississippi, Montana, New Hampshire, New Jersey, New York, North Dakota, Oregon, Rhode Island, South Carolina, Utah, West Virginia and Washington. Even though your state isn’t included in this list, you and your spouse can agree, formally or informally, for the payment of college support.
This chapter from Divorce Strategy was excerpted in all of the Fall 1998 U.S. editions of Divorce Magazine. The article is titled Charting Your Expenses in the Money Matters section.
How Much Does It All Cost?
Your cost to maintain an established lifestyle consists of all the expenses you pay from all your income sources, including loans. In a divorce you will hear the phrases “maintain a lifestyle to which your family is accustomed” and “reasonable needs”. There is an inherent conflict between the concepts of lifestyle and reasonable needs. The cost to meet the reasonable needs of your family may be much different than the cost of your lifestyle.
Webster’s Dictionary defines lifestyle as the “consistent, integrated way of life of an individual as typified by his manner, attitudes, possessions, etc.”. Reasonable needs are those things necessary to sustain a family with the basic requirements. The qualifier “reasonable” adds the limitations of not excessive, extreme or immoderate. Your family’s lifestyle and reasonable needs are the twocomponents of expenses that play a part in a divorce.
The difference in the definitions between “reasonable needs” and “lifestyle” becomes painfully obvious when a divorce court sets an amount of money for child support or spousal support. Quite often, the support amounts do not satisfy either spouse’s expenses to maintain previous lifestyles or the family’s current reasonable needs. This may lead to each ex-spouse being angry or bitter. These feelings are a result of each spouse believing that he or she is either paying too much or not receiving enough money for support. In reality, both spouses have to make adjustments in how they each pay for their needs and maintain their lifestyle.
Historical and Current Expenses
Your first step to determine the cost for your family’s lifestyle is to gather documents showing how your family has spent all the family money over a period of time. Several years worth of records are optimum, but records beginning one year prior to any separation may suffice. Some of the records you need are: bank account registers, canceled checks, paid bills, credit card statements, loan papers and cash receipts.
Software for financial record keeping is very helpful if you have a computer. A manual system takes longer to put together, but can be just as effective. For the manual system you need a 14 columnar pad, an adding machine or calculator, a good eraser and pencils. Use the worksheets at the end of this chapter as guidelines for setting up your own worksheets on separate sheets of paper.
To keep better track of expenses, change some of your spending habits. Start paying for as many expenses as possible with a credit card or check. Keep a daily log of any cash purchases. If you use a debit card to buy groceries and get cash back, note the amount of cash you received. Also, be sure you do not include the cash you received as a part of your food expense. Enter your current daily expenses under the proper categories into your daily or weekly worksheets. At the end of a month, add up all of your weekly expenses by category to get a monthly total for each category. Write that number in the proper space for each category expense for the month listed in your annual worksheet.
Continue keeping track of your daily and monthly expenses, transferring your monthly totals into a yearly worksheet listing your categories of expenses paid in that month. Total each month’s expenses and total each category for all the months you have entered data. Add all the month’s totals and divide by the number of months to get an average monthly total for each expense.
Organizing Your Records
Another example is credit card charges made to a child’s clothing store. This is a clothing expense and the children benefit from the purchase. List the expense under the clothing category for the children. The next step is to review each canceled check, paid bill or receipt and credit card statement to categorize all the transactions. At the same time you are categorizing the expense, record it into your system. Use the model worksheets on pages 165, 166, 168 and 169 to set up your recording system. Examples of some category listings are on pages 167 and 170.
Enter the expenses that you pay annually in the month you make the payment. Examples of these expenses are real estate taxes or insurance premiums. If you do not pay all your credit card bills in full every month, make a notation of the full amount of the bill and the amount you paid. Be sure to make an adjustment deducting the amount you carried over from the previous month when you make an entry in the following month. You want to list only the unpaid balance for the new charges each month to avoid a double entry for any balance carried over from a prior month or billing cycle. In some instances, the payment you make on the balance owed may be a monthly expense. Do not forget categories for interest, penalties and late fees.
Direct and Indirect Expenses
Once you have your family’s expenses listed and categorized, allocate them further into direct and indirect expenses. Direct expenses are the expenses incurred specifically for a particular family member. Indirect expenses are the costs for housing and other types of expenses necessary to maintain your family’s lifestyle. Examples of direct expenses are: tuition for a child to attend a private school, college tuition and room and board, clothing, medical expenses or music lessons. Some indirect expenses are: rent, mortgage payment, utility bills, automobile loan payment or insurance. In some cases, a payment of automobile insurance can be a direct expense if it is paid for a teenager to drive a car. Once you have compiled the worksheets for your family’s expenses, compute the average monthly total for the children’s indirect expenses and direct expenses.
© 1997 Broken Heart Publishing
Protecting Your Credit During Divorce
Frank Kelly Mortgage Victory
When a marriage ends in divorce, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn’t have to change is the credit status you’ve worked so hard to achieve.
Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one spouse’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.
The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.
The first step for anyone going through a divorce is to obtain copies of your credit report from the 3 major agencies: Equifax, Experian®, and TransUnion®. It’s impossible to formulate a plan without having a complete understanding of the situation. (Once a year, you may obtain a free credit report by visiting http://www.annualcreditreport.com/.)
Once you’ve gathered the facts, you can begin to address what’s most important. Create a spreadsheet, and list all of the accounts that are currently open. For each entry, fill in columns with the following information: creditor name, contact number, the account number, type of account (e.g. credit card, car loan, etc.), account status (e.g. current, past due), account balance, minimum monthly payment amount, and who is vested in the account (joint/individual/authorized signer).
Now that you have this information at your fingertips, it’s time to make a plan.
There are two types of credit accounts, and each is handled differently during a divorce. The first type is a secured account, meaning it’s attached to an asset. The most common securedaccounts are car loans and home mortgages. The second type is an unsecured account. These accounts are typically credit cards and charge cards, and they have no assets attached.
When it comes to a secured account, your best option is to sell the asset. This way the loan is paid off and your name is no longer attached. The next best option is to refinance the loan. In other words, one spouse buys out the other. This only works, however, if the purchasing spouse can qualify for a loan by themselves and can assume payments on their own. Your last option is to keep your name on the loan. This is the most risky option because if you’re not the one making the payment, your credit is truly vulnerable. If you decide to keep your name on the loan, make sure your name is also kept on the title. The worst case scenario is being stuck paying for something that you do not legally own.
In the case of a mortgage, enlisting the aid of a qualified mortgage professional is extremely important. This individual will review your existing home loan along with the equity you’ve built up and help you to determine the best course of action.
When it comes to unsecured accounts, you will need to act quickly. It’s important to know which spouse (if not both) is vested. If you are merely a signer on the account, have your name removed immediately. If you are the vested party and your spouse is a signer, have their name removed. Any joint accounts (both parties vested) that do not carry a balance should be closed immediately.
If there are jointly vested accounts which carry a balance, your best option is to have them frozen. This will ensure that no future charges can be made to the accounts. When an account is frozen, however, it is frozen for both parties. If you do not have any credit cards in your name, it is recommended you obtain one before freezing all of your jointly vested accounts. By having a card in your own name, you now have the option of transferring any joint balances into your account, guaranteeing they’ll get paid.
Ensuring payment on a debt which carries your name is paramount when it comes to preserving credit. Keep in mind that one 30-day late payment can drop your credit score as much as 75 points. It is also important to know that a divorce decree does not override any agreement you have with a creditor. So, regardless of which spouse is ordered to pay by the judge, not doing so will affect the credit score of both parties. The message here is to not only eliminate all joint accounts, but to do it quickly.
Divorce is difficult for everyone involved. By taking these steps, you can ensure that your credit remains intact. For more information visit http://www.mortgagevictory.biz/
www.MortgageVictory.com
Bankruptcy is an uncomfortable subject for a variety of reasons. The most obvious is the potential havoc it can wreak on your finances. Running a close second is the negative stigma which is often attached to the process. This negativity is important to mention because strong emotions can sometimes lead to unsound financial decisions with devastating results.
Bankruptcy becomes a viable option for someone who is “upside down” in terms of cash flow. In other words, when a person has more money going out each month than coming in, bankruptcy should be considered if no reversal of this negative cash flow is within sight. The longer someone waits to explore the various options available, the more serious his or her situation may become.
One of the worst things people can do in this situation is to borrow more money to try and pay off their debts. On paper, this is clearly an unwise financial decision. In the real world, however, it is very common for individuals to pursue this strategy in an attempt to buy time and hold off on filing for bankruptcy. On the surface, this is certainly a noble notion; however it can often compound the problem and serves only to delay the inevitable.
For many homeowners in the midst of this upside down cash flow, speaking to a qualified mortgage professional is a much better option. An experienced loan officer can objectively look at your finances and help you determine if restructuring your mortgage would not only help, but possibly even alleviate any need for bankruptcy.
If bankruptcy is the only option, seek out a reputable bankruptcy attorney and credit counselor. A qualified mortgage specialist can provide references for you as well, as he or she works with these professionals on a regular basis. Reliable references are essential in this case because experienced professionals greatly increase the odds of a successful bankruptcy experience. It’s that simple.
When filing for bankruptcy, be completely honest and accurate regarding every aspect of your financial situation. This includes any changes to your income which may occur throughout the process. Bankruptcy is a federal procedure, adjudicated by real judges, and scrutinized by representatives who coordinate with the Department of Justice, the FBI, and the IRS.
Here are some additional steps from www.mortgagevictory.com you can take to make the bankruptcy process as painless as possible:
Save all paperwork regarding your bankruptcy, and keep it organized. This will prove beneficial after your bankruptcy as you now have all of the pertinent information in one place. Also, be sure to write down your discharge date. It’s surprising how many people forget to do this.
Establish a household budget. This can be accomplished in many ways, but there are several inexpensive computer programs available which do an excellent job.
Throughout the bankruptcy, do your best to not only live below your means, but to save as much cash as possible. You never know what you may need it for once the process is completed.
Be prepared for a barrage of junk mail. There will be sharks on the loose who are hoping to capitalize on your need for credit.
Tips for Rebuilding Credit from www.mortgagevictory.biz :
If you must buy a car, focus on transportation as opposed to style. Buy an inexpensive, used car, and try to get a loan for it. It’s a good idea to figure out what your budget allows in terms of a dollar amount first. This means obtaining financing prior to looking for a car.
Get a secured credit card. Secured credit cards allow for the cardholder to deposit a said amount of money into an account, thus establishing the spending limit of the card. Missed payments result in deductions from the account. Some of these cards will reward responsible borrowers by upping the limit without an additional deposit. Some will even convert the account into a traditional credit card. (Be wary of offers of “easy credit” or any card which asks you to call a 900 number. You will be charged for the call.)
Meet with a credit repair specialist. Not only can they help you clean up the damage to your credit report, they can advise you on specific ways to rebuild the credit you lost as well.
While it does take time, there is definitely life (and credit) after bankruptcy. Some mortgage lenders will even lend to you within a year or so after a bankruptcy. If you’re in serious financial trouble, the trick is to get the help and advice you need from professionals you trust.
Frank Kelly is affiliated with Panam Mortgages, a Licensed Broker, NY Department of Real Banking. For a free copy of our Consumer Credit Scoring Booklet, contact Frank Kelly at (866) 892-4163. http://www.mortgagevictory.biz
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FRANK KELLY
866-892-4163
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