Post-Secondary Educational Expenses

black-and-white-restaurant-eating-sittingUnlike many other state courts, Indiana courts can require a parent or parents to pay for at least a portion of their children’s post-secondary educational expenses. The expenses may include college or technical school tuition, room and board, books, travel expenses, and other living expenses. Pursuant to Indiana law, children and/or parents must file a petition with the court requesting these contributions before the child turns 19. If this request is not made to the court before the child turns 19, the child and the parents will lose their ability to seek such court ordered contributions.

This area of the law is still developing and there is no exact formula that the courts must follow in order to grant a petition for contribution to post-secondary education. Before July 2012, if the court granted such a petition, the courts’ presumptive ruling would order each party (mother, father and child) to contribute one-third (⅓) of the post-secondary educational expenses. Sometimes, the court would cap this total amount at the full cost of a child attending a major instate college like Indiana University or Purdue University.

Petition for Post-Secondary Educational Expenses

After the 2012 legislative changes to child support in Indiana, the court now looks for many factors to determine whether to grant a timely filed petition for contributions to children’s post-secondary educational expenses. A court may make its
determination based upon whether the students applied themselves in high school, whether payment of college expenses was agreed upon when the parents were married or otherwise together, the parents’ financial and educational background, and many other factors. If the case arises from a divorce, the judge can attempt to determine what the parties would agree upon regarding the payment of college expenses if they were still married. The courts also look at whether the parents went to a private or public university, whether their parents helped pay for their college education, the present ability of each parent and the child to pay for a portion of post-secondary education, scholarships available to the child, financial aid available to the child, the child’s ability to otherwise help fund his or her education through employment and/or college loans, and other factors.

Because of the many factors that can be used to determine whether the parents are responsible for a portion of their child’s post-secondary education and, if so, how much each parent and the child should contribute to post-secondary education, I strongly suggest that parents begin discussing these issues with their child, ex-spouse, financial advisor, and lawyer well before the child is trying to choose a college or trade school. Also, if a parent does not think that the costs of a post-secondary education should exceed a certain tuition amount, such as instate school tuition, this language and other language can be added to their divorce agreement or child support order well before funding of post-secondary education becomes an issue.

Lawyers advise their clients who have the financial wherewithal to compromise regarding this issue because the parents do not want to be seen by their children as not supporting their education. On the other hand, a parent may lack the ability to pay. Some who lack the ability to pay may simply not make enough money, while others make more money but are strapped with student loans resulting from their education. Moreover, many parents legitimately assert that they should not be responsible to pay for their child’s post-secondary education because no one offered to pay for their college education. Some may have not attended college because they could not afford it or because of other life-altering situations.

Ironically, prospective Indiana college students of divorced parents or prospective students who are born out of wedlock can petition a court to request that their parents be court ordered to pay for some or all of their college education. On the other hand, a child born of a still married couple has no such legal remedy and is completely dependent on their parents’ generosity and financial condition. This irony is the reason why most states do not have a legal remedy that would require parents, divorced, married or otherwise, to contribute to their children’s post-secondary education.

Assuming that parents agree on how to fund their child’s post-secondary educational expenses, the parents should file their agreement with the court because if one parent then backs out of this agreement, it becomes unenforceable. In addition, if a parent backs out of the agreement, it may be too late to petition the court for assistance if the child is over 19 years old.