In any marriage dissolution involving children, the parties agree that the best interests of their offspring are important. The form that those best interests take and the best ways to ensure they are secured, however, can be contentious. For divorcing couples with adult children or children nearing college age, resolving disputes about their support can be a tricky issue.
In Arizona, family courts lack jurisdiction to order continuing child support for most children once they reach the age of majority. There are some exceptions outlined in A.R.S. § 25-320; for example, adult children who became disabled before the age of eighteen and are unable to support themselves can continue to receive child support payments. Another exception provides continuing child support for children who reach the age of majority while attending high school.
If the parents wish to set aside college funds for an adult child in a divorce, however, they must do so by creating a contract outside of the court’s dissolution decree. Careful drafting is of paramount importance here because family courts cannot enforce the agreement in supplementary post-dissolution proceedings after the child reaches the age of majority. See Solomon v. Findley, 167 Ariz. 409 (1991).
When the parties agree that they want to settle college tuition by contract, what should the document say? Every situation is a little different, of course, but some provisions must be made clear:
First, the parties must agree on the definition of “college” in the contract. Should the agreement apply to vocational school tuition? Community college? Should the support payments be made contingent on the adult child pursuing a specific type of degree, like a science degree? Precision is needed to ensure that the language of the contract encompasses every possibility. If the parties later disagree on the definitions of terms used in the agreement, lack of careful drafting could result in non-enforcement in a contract action.
Second, the parties must determine the nature and duration of support payments while the adult child attends college. If the contract obligates one or both parties to pay support until the child receives a bachelor’s degree, for example, the support obligation could extend for much longer than the standard four years needed to complete most baccalaureate programs. Setting a term limit or making the support contingent on the student taking a minimum number of credit hours and maintaining a minimum GPA could prevent abuse, but might also prematurely cancel support in the event of unforeseen circumstances creating a delay.
Furthermore, the nature of the support is an important consideration. Will the parties pay for their child’s college tuition only, or will they set aside funds for living expenses, as well? Do the parties expect their child to take summer courses or earn an income when school is not in session? Again, the contract must be drafted to incorporate the parties’ intent at the time of the dissolution. Four years is a long time, and a disgruntled parent might look for a way to discharge their obligation if the contract allows.
Third, the parties must agree on the source of funds and how the funds will be saved and distributed to the adult child. The parties may choose to obligate themselves to pay a percentage of their income into a savings account, purchase education bonds, or to simply pay a percentage of the child’s educational expenses once they enroll. Creative solutions are fine – some parents may agree that one spouse will transfer GI Bill educational benefits or liquidate some specified assets for their adult child’s college expenses, for example – but they must be described with enough specificity that the contract can be interpreted and enforced years after it was written.
As with any contentious issue in a dissolution action, providing for a child’s future educational expenses is never a “boilerplate” matter. Even though contracts relating to child support are not enforceable in family courts once the child reaches the age of eighteen, it is usually best to draft them during the dissolution process while all of the parties’ assets and obligations are already being examined. It can be much more difficult to negotiate child support contracts after the dissolution action concludes.