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How are College Expenses Handled in a Colorado Divorce?

Although many assume college expenses are a part of child support obligations, that is not the case in Colorado.  Unless otherwise agreed, Colorado child support obligations terminate when the child reaches the age of emancipation, or nineteen (19) years of age.  In a dissolution of marriage proceeding in the state of Colorado, the Court does not have jurisdiction to order a party to pay college expenses for the parties’ child(ren), as has been the case since July 1, 1997.  Unless the parties reach an agreement on their own regarding college expenses and memorialize the terms in their Separation Agreement, Parenting Plan, or another stipulation, only Orders entered prior to July 1, 1997, may direct one or both parties to pay college expenses without express consent from each paying party.  The Court, however, may not enter an Order directing either party to pay college expenses for a child over the age of 21, nor may it enter an Order directing either party to pay college expenses for a child at the same time a child support obligation is paid by the same party for the same child, regardless of agreement.

An important consideration for parents who have savings accounts dedicated to their children’s post-secondary education is the distribution of assets which will occur as part of the dissolution of marriage action.  Often times, parents divide such accounts and are forced to liquidate them to pay for expenses associated with the divorce action, leaving the children for whom the accounts were originally intended with little or no financial resources to use for college expenses.  Thus, it is imperative for parties to a dissolution of marriage proceeding to consider the impact any settlement terms may have on their previous plans to assist one or more children with post-secondary education expenses.

Agreements to pay college expenses should specify when the paying parent(s) are to provide funds to the student’s school, and how much of the funds should be allocated to various categories of expenses like books or tuition.  For parents choosing to agree to pay a child’s college expenses, another popular choice is to include particular conditions which the student must meet to maintain eligibility for financial assistance from the paying parent(s).  For example, the parties may require the student to maintain a 3.0 grade point average, or be included on the Dean’s List each semester.

In addition to matters related to the parties’ contributions to a child’s college expenses, a dissolution of marriage also may affect a child’s ability to qualify for federal financial aid programs through the Free Application for Federal Student Aid.  The student’s custodial parent (and stepparent, if married to the custodial parent at time of FAFSA completion) must provide tax information for the FAFSA in order for the student to be eligible for need-based aid like grants and subsidized loans.  The student’s non-custodial parent is not required to provide his or her tax information for the FAFSA in order for the student to be eligible for need-based aid.  Some private colleges may require information from the student’s non-custodial parent, regardless of FAFSA requirements.  Notably, child support paid to the custodial parent by the non-custodial parent is counted as income on the FAFSA for the custodial parent in determining the student’s eligibility for need-based aid.  Unless the student has reached the age of 24, or is married, in the military, in a post-graduate program, or experiencing a few other extenuating circumstances, he or she is considered a dependent student subject to the above FAFSA requirements to be eligible for need-based aid.

If the student’s parent(s) refuse to provide tax information for the FAFSA, the student is NOT eligible for need-based aid including grants and subsidized loans.  Unfortunately, the student may also not be eligible for many scholarships, which tend to require a completed FAFSA as part of the application process.  Financial aid officers often reach out to stubborn parents to try to convince them to complete the FAFSA for dependent students but, ultimately, parents are NOT punished for refusal to provide their tax information for the FAFSA.

Students whose parents refuse to complete the FAFSA have a couple options. First, the student’s school still has the authority to consider the student eligible for ONLY unsubsidized loans ($2,000/year limit for dependent undergraduate students), which are not need-based.  In the alternative, the student can petition for a “dependency override” under section 480(d) of the Higher Education Act which, if approved, would qualify him or her as an independent student eligible for need-based aid (in all forms) without providing parent tax information on the FAFSA.  Apparently, only a fraction of a percent of undergraduate students successfully obtain an override each year.

Parental unwillingness to directly contribute funds to a student’s higher education is not considered grounds for a dependency override, nor is parental unwillingness to provide information for completion of the FAFSA.  A combination of those circumstances also does not qualify for a dependency override.

Contact an experienced divorce attorney at Burnham Law to learn more about how college expenses are impacted by divorce, as well as the best strategies for moving forward.

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Ben
Brightwell

Senior Associate

Colorado Springs

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