January 23, 2002
POST-MAJORITY CHILD SUPPORT LAWS
By: Susan Price-Livingston, Associate Attorney
You asked about laws in other states that authorize courts to issue child support orders that continue while students are enrolled in college or other post-secondary education or job training programs.
We found laws in 10 states that permit courts to order a parent to pay some portion of a child's post-secondary educational expenses. And two others extend the age of majority to a child's 21st birthday for child support purposes, thus permitting support orders to cover any child up to that age.
Outside of these states, courts have issued conflicting rulings on the authority of judges to order child support payments after the age of majority. For example, judges in New Hampshire, New Jersey, North Dakota, and South Carolina have found this authority in those states' general child support laws. But Pennsylvania's Supreme Court has ruled that it is unconstitutional to order divorced parents to support offspring after they reach adulthood.
Colorado, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Missouri, New York, Oregon, and Washington have enacted legislation authorizing courts to order post-majority support in appropriate cases. We describe each of these laws below and enclose copies.
Colorado recognizes post-secondary education expenses as a reason to extend parental support obligations until a child turns age 21 or completes his undergraduate studies, whichever occurs first. If a court determines it appropriate for parents to contribute to a child's post-secondary education, the family court judge must terminate any existing child support order and replace it with an order requiring the parents to contribute to the child's education expenses. By law, these expenses include college or vocational school tuition, books, and fees. Orders may also include payment for health insurance or medical expenses (Colo. Rev. Stat. § 14-10-115(1. 5)).
Subsequent legislation has limited post-secondary education support to child support orders entered before July 1, 1997 (§ 14-10-115(1. 6)).
Hawaii's law permits courts to issue orders that are just and equitable for the support, maintenance, and education of adult or minor children. It requires the state child support agency to mail notices three months before a child's 19th birthday. The notice informs the child and custodial parent that the non-custodial parent's support obligations will be suspended on the child's next birthday unless the agency receives proof that the child is enrolled as a full-time student or has been accepted into a full-time college or university program (Haw. Rev. Stat. § 580-47(a)).
In Illinois, courts can order educational support regardless of the age of the offspring. Support applications can be filed before or after the person reaches the age of majority, and orders can apply to expenses related to college education or other professional training after high school. By law, expenses include room and board, academic fees, tuition, transportation, books, application costs, medical expenses (including insurance), and living expenses during the school year and recesses. Judges must consider the financial resources of the parents and child, as well as the standard of living the child would have enjoyed had the parents not divorced (750 Ill. Comp. Stat. 5/513).
Under Indiana law, a parent's support obligation ends when the child turns age 21, unless the court finds it appropriate to order support for the child's education at institutions of higher learning (Ind. Code § 31-11-5-12(d)(1)). In deciding whether post-secondary educational support is appropriate, judges must consider (1) the child's aptitude and ability; (2) his reasonable ability to contribute to education expenses through work, loans, or other sources of financial aid reasonably available to him and each parent; (3) special medical, hospital, or dental expenses necessary to serve his best interests; (4) the ability of each parent to meet these expenses; and (5) fees mandated by federal child support program ("IV-D") rules (§ 31-16-6-2).
Judges issuing orders for post-secondary educational support must reduce other support orders for that child when they duplicate the education support order's coverage and would otherwise be paid to the custodial parent.
A provision of Iowa law defines "support" as including support for a child between ages 18 and 21 who is regularly attending an accredited school, a full-time college, or has been accepted at either and the next regular term has not begun (Iowa Code § 598. 1(2)). Judges may order college support if good cause is shown. When determining whether good cause exists, they must consider the parents' financial condition and the child's age, ability to perform college-level work, and whether he is "self-sustaining. "
The amount of a parent's support obligation is based on a formula that takes into account (1) the cost of attending an in-state public undergraduate program, including reasonable and necessary expenses; (2) the amount which the child should contribute, considering available financial aid and his ability to work while attending school; and (3) each parent's proportional ability to pay. Neither parent can be ordered to pay more than 1/3 the total cost of the post-secondary education. And courts cannot order a parent who the child has publicly disowned, refused to acknowledge, or repudiated to pay post-secondary educational support.
The student must give each parent copies of his grades within 10 days of receiving them. And unless the parties agree otherwise, the court must terminate an educational support order after the child has completed his first calendar year of instruction when his cumulative grade point average falls below the school's median (§ 598. 21. 5A).
In Massachusetts, courts can issue orders for maintenance, support, and education for children between ages 18 and 21 who are domiciled with a parent and principally dependent on him for support. Under certain circumstances, judges can also issue support orders for children enrolled in undergraduate educational programs until their 23rd birthday. Such orders may include continuation of health insurance coverage if the court determines that this option is reasonably available to either parent. And courts must consider a parent's responsibility to support other children when they determine how much he must contribute to the student's post-secondary school expenses (Mass. Gen. Laws ch. 208 §28).
Missouri's law requires parents to continue paying child support when the child is enrolled full-time in an institution of higher education, such as a college, community college, or vocational school. He must enter the program shortly after completing high school or its equivalent.
The student must give both parents official records from the school each semester showing the courses he took and grades earned. In most cases, support obligations end on the earlier of the child's 22nd birthday or completion of the undergraduate program. But children with learning or physical disabilities or illnesses that prevent them from carrying a full course load remain eligible so long as they remain enrolled and satisfy other requirements. The law also permits students who work at least 15 hours per week during the school year to have a reduced course load (Mo. Rev. Stat. § 452. 340. 5).
Finally, the law directs courts to consider ordering the parent who would normally be entitled to claim a tax dependency exemption for the student to allow the other parent to claim it when state and federal tax laws and financial aid eligibility rules make this appropriate (§ 452. 340. 6).
In New York, courts may order parents to pay a child's present or future educational expenses, including for post-secondary or education enrichment programs. The court must consider the circumstances of each party and the child's best interests. Orders may specify that payment go directly to the school (N. Y. Dom. Rel. Law § 240(1-b)(c)(7)).
An Oregon law permits court orders for support until age 21 for unmarried students enrolled at least half-time in college or professional or technical training programs designed to fit them for gainful employment. They must maintain at least a "C" average and provide their parents copies of their grades and course enrollment records. Orders must specify that payments go directly to the child unless good cause is found for distributing them in some other way (Or. Rev. Stat. § 107. 108).
Washington's legislature passed a post-secondary education support statute in 1990. It permits courts to order parents to support a child up to age 23 (or beyond in cases of mental, physical, or emotional disabilities) when he is in fact a dependent and relies on his parents for the reasonable necessities of life. Courts have discretion to set the duration of this continuing support obligation, based on facts that include the (1) child's age, needs, prospects, desires, aptitudes, abilities or disabilities; (2) parents' level of education, standard of living, resources, and expectations for their children when they were together; and (3) nature of the education sought.
The child must remain in good academic standing and make his grades available to both parents. The court must order payment directly to the educational institution if feasible, otherwise to the child (Wash. Rev. Code § 26. 19. 090).
AGE OF MAJORITY
Utah and the District of Columbia permit courts to order child support payments to continue until the child's 21st birthday. They do this by making this the date of majority for child support purposes (Utah Code Ann. § 15-2-1; D. C. Stat. § 16-916).
Post-Majority Support Orders Authorized
Courts in New Hampshire, New Jersey, North Dakota, and South Carolina have interpreted their general child support laws as permitting judges to order support for offspring beyond age 18 when appropriate. New Hampshire judges look at what is equitable in light of the circumstances of the parties. Its Supreme Court has upheld the validity of post-majority college support orders (Gnirk v. Gnirk, 134 N. H. 199 (1991)).
New Jersey's Supreme Court has ruled that judges have the authority to modify divorce decrees to award a payment of support and expenses of a child attending college even though the child has reached the age of majority (Newburgh v. Newburgh, 88 N. J. 529 (1982)).
A North Dakota statute provides that "parents shall give their children support and education suitable to their circumstances" (N. D. Cent. Code § 14-09-08). The state Supreme Court has ruled that this provision allows courts to order support for college education (Johnson v. Johnson, 527 N. W. 2d 663 (N. D. 1995)).
In South Carolina, family court judges may require a parent to pay support after a child reaches age 18 when necessary to enable him to attend high school and four years of college. There must be evidence that (1) the child exhibits characteristics indicating that he will benefit from college, has the ability to do well, and cannot otherwise go to school and (2) the parent has the financial ability to help pay for the education (West v. West, 309 S. C. 28 (S. C. App. 1992)).
Post-Majority Support Law Unconstitutional
Pennsylvania's highest court declared that state's post-majority support law unconstitutional. The justices concluded that the law violated the U. S. Constitution's Equal Protection Clause (Curtis v. Kline, 666 A. 2d 265 (Pa. 1995)).