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1999 National Legal Research Group, Inc.

In the days of our parents and grandparents, college was viewed as an optional part of a child's education. In the wealthier classes, college was common, and more talented members of other classes might have attended college as well, but college was not seen as essential to one's success in society. Many persons who did not attend college were able to obtain productive employment and become important members of society.

In today's information-oriented society, there is increasing recognition that college is as essential to a child's overall education as elementary school and high school. Almost all of the best job positions in the modern economy are filled by college graduates, and those with no college experience have an unprecedented handicap in the workplace. In response to this case, government aid programs and private scholarships are making college easier to afford for any child who wishes to attend. The rising cost of a college education has made the goals of these aid programs harder to reach, but there is still a growing consensus that every child should have at least a fair opportunity to attend college.

This consensus is having only a limited effect upon child support. If college is as a practical matter essential to education, then parents should have a duty to assist their children in obtaining a college education. A growing number of states in fact impose such a duty, at least in the context of divorced families. The majority of states, however, still refuse to impose a legal duty to pay for a college education.

In these states, therefore, a duty to pay for college arises only where a parent agrees to assume such a duty. Since noncustodial parents are generally much less willing than custodial parents to pay for college, college support provisions are appearing in negotiated divorce settlements with increasing frequency. These provisions are appearing not only because college is becoming more important but also because the cost of a college education is increasing. In many divorced families, the custodial parent and the child cannot afford to pay the costs of college by themselves, and the custodial parent is willing to make concessions in other areas in order to obtain college support provisions.

As a result of these changes, college support provisions are appearing in negotiated agreements with unprecedented frequency. When these agreements come before the courts for construction or enforcement, the courts are facing a wide variety of college-related issues. The purpose of this article is to examine the large and growing body of case law involving college support provisions in private separation agreements.

This article is written from the view point of the reader who is confronted with such an agreement after it has been signed. The crucial points of interest to that reader are whether the agreement is valid, what its terms mean, and how it can be enforced against a party who refuses to comply with it.

In addition, the present article follows this publication's longstanding refusal to draw distinctions between different types of divorce settlements:

Some cases and authorities produce unnecessary confusion by attempting to draw distinctions between separation agreements, property settlements, stipulations, consent judgments, or other forms of agreements in divorce actions. None of these is a technical term. They all refer to methods of compromising divorce litigation. In this chapter, only one term will be used: separation agreement.

2 Homer H. Clark Jr., The Law of Domestic Relations in the United States 409 (2d ed. 1987).


While a growing minority of states permits the court to order a parent to pay college tuition as a matter of first instance, the majority rule still gives the court no power to make such an award. See, e.g., Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52 (1979).

In those states following the majority rule, however, the courts will enforce private agreements in which a parent agrees to pay college support. The rationale is that the court lacks power to impose a college support obligation only under the law of child support. Where a parent has voluntarily agreed to provide college support, that obligation is enforceable under a different body of law entirely: the law of contracts. In other words, while the courts will not impose upon a parent an obligation to pay college support, the courts will permit a parent to impose such an obligation upon himself or herself. See, e.g., Winset v. Fine, 565 So. 2d 794 (Fla. Dist. Ct. App. 1990); Crow v. Crow, 622 So. 2d 1226 (Miss. 1993); Geiringer v. Mowery, 433 Pa. Super. 44, 639 A.2d 1202 (1994); Goss v. Timblin, 424 Pa. Super. 216, 622 A.2d 347 (1993). In states where the court can order post-majority support, a college support provision can still be enforced under the law of contracts, as opposed to the law of child support judgments. McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239 (1993); Treadway v. Treadway, 325 S.C. 367, 479 S.E.2d 849 (Ct. App. 1996); Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52 (1979).

Merger. Where an agreement merges into the divorce decree, so that the contract loses all independent existence, does the court's inability to enforce post-majority support as a term of the decree make such support unenforceable? In Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995), the court held that merged post-majority support provisions cannot be enforced by the wife. It did hold, however, that such provisions can still be enforced by the child as a third-party beneficiary of the agreement.

If the result reached in Noble is correct, then the agreement came close to contradicting itself: It placed a major liability upon the husband, but then made it unenforceable by the only other party to sign the agreement. Such a result seems sufficiently unusual that it should be reached only where clearly required by the plain language of the agreement. At a minimum, one would think that the mere presence of a post-majority support provision would be a strong reason to suspect that the parties intended their agreement to be only approved or incorporated into the agreement, and that they positively rejected merger.

Severability. A college support provision is invalid if it cannot be severed from another invalid provision of the agreement. This point is particularly important because college support provisions are often inseverable from traditional child support provisions, which the court is not required to follow. For example, in Spagnolo v. Spagnolo, 20 Va. App. 736, 460 S.E.2d 616 (1995), the parties agreed to set child support at an amount lower than the guidelines provided in exchange for the father's promise to pay college support. The trial court refused to follow the agreement, and it set child support at the guideline amount. It also tried to hold, however, that the college support provision was valid. The appellate court disagreed, finding that the father's agreement to pay college tuition was contingent upon the present support being set below the guideline amount. If the court rejected the parties' agreement as to the present child support, the college support provision was invalid as well.

The fundamental problem in Spagnolo was that the trial court tried to have the gain without the pain: to have an enforceable college support provision without requiring the mother to make a concession to obtain it. As long as college support provisions are enforceable only as a matter of contract, payors will accept such provisions only if they receive consideration in return. Failure to recognize this fact is tantamount to holding that the court may impose a college support obligation upon an unwilling party. When evaluating provisions such as the tradeoff of present support for future support, as in Spagnolo, the court must determine whether the benefit of the college support provision is worth the cost. The author's sense is that the agreement in Spagnolo was in the child's overall best interests, and the better course of action would have been to approve it.

Modification. Does the court have discretion to modify the terms of a college support provision or even to ignore a college support provision entirely? The general rule is that all forms of post-majority child support are matters of private contract. The court has broad powers to modify child support under the common law, but that authority ceases to apply when the child reaches majority. Since college provisions involve post-majority support, most courts hold that such provisions cannot be modified. See Albrecht v. Albrecht, 19 Conn. App. 146, 562 A.2d 528 (1989); Norris v. Norris, 473 A.2d 380 (D.C. 1984); Jones v. Jones, 244 Ga. 32, 257 S.E.2d 537 (1979); Morrison v. Morrison, 14 Kan. App. 2d 56, 781 P.2d 745 (1989); Hogan v. Hogan, 534 So. 2d 478 (La. Ct. App. 1988), modified on other grounds, 549 So. 2d 267 (La. 1989); Rohrbacher v. Rohrbacher, 83 Ohio App. 3d 569, 615 N.E.2d 338 (1992) (modification not permitted after child reached majority; suggesting a different result if petition had been filed during minority); In re White, 299 S.C. 406, 385 S.E.2d 211 (Ct. App. 1989); Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52 (1979).

One decision reaches a contrary result. In Moss v. Nedas, 289 N.J. Super. 352, 674 A.2d 174 (App. Div. 1996), the agreement required the father to pay all college expenses. The court viewed the agreement as a child support contract and modified it without heed to the parties' intent, limiting liability to reasonable costs and requiring the mother to consult with the father on the specific school attended. The result was a gross and fundamental breach of the rule that the parties can always agree to pay more child support than the law requires.

It is important to draw a clear distinction between an agreement to pay post-majority child support and an agreement to pay specific expenses of college. In Sartin v. Sartin, 678 So. 2d 1181 (Ala. Civ. App. 1996), the agreement provided that the father "shall continue to support the child" so long as he was in college and certain other conditions were met. The trial court enforced the agreement by making an award of college expenses. The appellate court quite properly reversed, holding that the father had agreed only to extend his normal child support payments past the normal age of termination.

Vagueness. Since the costs of college are difficult to anticipate in advance, college support agreements could rarely be enforced if the courts insisted upon a specific listing of the costs and amounts covered. In recognition of this fact, the courts have enforced these agreements even where their language has been very broad. See, e.g., In re Pierce, 95 B.R. 154 (N.D. Cal. 1988) ("educational expenses"); Yar brough v. Motley, 579 So. 2d 684 (Ala. Civ. App. 1991) ("reasonable" expenses); Harvey v. Daddona, 29 Conn. App. 369, 615 A.2d 177, 178 (1992) ("reasonable costs"); Stevens v. Stevens, 798 S.W.2d 136, 137 (Ky. 1990) (contract declared father's "intention" to pay college expenses in an amount to be agreed upon by father and child); Smith v. Smith, 159 A.D.2d 929, 553 N.Y.S.2d 243, 244 (1990) ("all sums necessary or desirable" for support of child included college expenses); Stefani v. Stefani, 166 A.D.2d 577, 560 N.Y.S.2d 862 (1990) (father required to pay expenses only if "financially able"); Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) ("reasonable expenses"). But see Rosen v. Rosen, 105 N.C. App. 326, 413 S.E.2d 6, 8 (1992) (maverick decision holding that expenses "reasonably incurred in the obtaining of an undergraduate college degree" were too vague to be enforced); cf. Glassberg v. Obando, 791 S.W.2d 486 (Mo. Ct. App. 1990) (contract requiring payment of unspecified expenses was too broad, but remedy was a court order specifying the expenses; contract was not unenforceable).

Where the order provides only that the payor has a "moral obligation" to provide college support, there is no legal obligation. Madson v. Madson, 636 So. 2d 759, 760 (Fla. Dist. Ct. App. 1994).

If the agreement is so broad as to reflect only an agreement to agree, it is not enforceable. See Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) (included provision stating that parties would agree upon proper amount for support of home while child was in college; direct college costs were covered by distinct, enforceable provision).

Specific Language. Since post-majority child support cannot be awarded by the court in a majority of cases, the courts impose such an obligation by contract only where there is supporting language in the contract. See Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790 (1994) (agreement to agree on living allowance for child at college could not be enforced).

Where the contract does contain supporting language, however, the courts have tended to construe that language to require contribution. See Stevens v. Stevens, 798 S.W.2d 136, 137 (Ky. 1990) (agreement stating father's "intention" to pay college expenses, in an amount to be agreed upon by father and child, created an enforceable obligation); cf. Hoefers v. Jones, 288 N.J. Super. 590, 672 A.2d 1299 (Ch. Div. 1994), aff'd per curiam, 288 N.J. Super. 478, 672 A.2d 1177 (App. Div. 1995) (father agreed to pay private school tuition if "both parties agree," provided that "the issue must be discussed between the parties on an annual basis"; agreement stated an enforceable obligation).


The intention of any college support provision is to allocate liability for specific college costs. Since most such provisions are drafted long before the children actually reach college age, the parties must speculate as to the precise costs which will be incurred. This need to speculate unavoidably leads to vague language. Courts generally recognize that college costs cannot be listed in advance with great specificity, and they read college support provisions to implement the reasonable intent of the parties.

Type of Institution

Many children choose to attend a traditional four- year college, but some children choose to attend less traditional educational programs. The general trend is to construe the word "college" broadly to include any post-high school educational program. See Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991) (Art Institute of Chicago); Goss v. Timblin, 424 Pa. Super. 216, 622 A.2d 347, 348 (1993) ("college education" included three-year program at the Art Institute of Pittsburgh); In re Oldham, 222 Ill. App. 3d 744, 584 N.E.2d 385 (1991) (DeVry Institute of Technology, offering four-year programs in electronics, computer, and business fields; some traditional liberal arts courses offered and required).

Some courts are reluctant to include in the definition of "college" an institution which is essentially a trade school. See In re Holderrieth, 181 Ill. App. 3d 199, 536 N They all refer to methods of compromising divorce litigation. .E.2d 946, 947 (1989) (contract to pay the expenses of "college and professional education" did not cover the expenses of a trade school at which the child was studying automobile mechanics); In re Leming, 227 Ill. App. 3d 154, 590 N.E.2d 1027 (1992) (term did not include Sparks Business College, which provided short-term training in becoming a court reporter, or the International Air Academy, which offered a three-month course in working in the airline industry); Cathcart v. Cathcart, 307 S.C. 322, 414 S.E.2d 811 (Ct. App. 1992) (agreement to pay for "four (4) year undergraduate college education" did not apply to program of less than four years at Midlands Technical College). The focus of these courts' requirement is on the type of school and not on the type of program. See In re Dieter, 271 Ill. App. 3d 181, 648 N.E.2d 304 (1995) (father must pay flight school costs for aviation major at state university, even though flight lessons at a trade school might not be covered).

Military Academies. Where the agreement terminates college support upon emancipation, and the child attends a military academy, the mere fact that the child is technically paid for service in the military does not constitute emancipation within the meaning of the agreement. Howard v. Howard, 80 Ohio App. 3d 832, 610 N.E.2d 1152 (1992) (Coast Guard Academy). In other words, military academies are treated as colleges and not as traditional military service, for purposes of child support.

Graduate School. The courts are reluctant to require parents to contribute to the graduate school expenses of their children. Thus, graduate school expenses are generally payable only where the contract expressly so provides. See Del Castillo v. Del Castillo, 420 Pa. Super. 520, 617 A.2d 26, 27 (1992) (agreement to pay for the child's "education . . . beyond the high school level" included only college; dissent would have included graduate school); Mason v. Mason, No. 98-1002 (Fla. Dist. Ct. App. Dec. 23, 1998) ("college and/or other post- graduate or professional school beyond high school" included only college and not graduate school). Butsee Allyn v. Allyn, 163 A.D.2d 665, 558 N.Y.S.2d 983, 984 (1990) ("education beyond the high school level" included both college and medical school).

Choice of Institution

Some agreements give the payor the right to approve the child's choice of school. Courts disfavor these provisions, as the power to disapprove the school can easily be used in bad faith to avoid liability altogether. Thus, an absolute right of approval will be granted only where the contractual language is clear. For example, a mere provision giving the payor the right to "participate" in choosing the school does not give an absolute right of approval. Tiffany v. Tiffany, 1 Va. App. 11, 332 S.E.2d 796 (1985); Giacalone v. Giacalone, 876 S.W.2d 616 (Ky. Ct. App. 1994) (husband's right to "participate" in deciding whether child attended parochial high school did not give absolute right of approval).

Where the agreement appears to grant a right of approval, the court may avoid the provision to some extent by imposing a requirement of good faith. See Tapp v. Tapp, 105 Ohio App. 3d 159, 663 N.E.2d 944, 945 (1995) (promise to pay expenses "at a college or university of the Husband's approval" required that husband act in good faith; where agreement spoke in terms of "four year" program and husband refused to approve any institution other than a two-year community college, father did not act in good faith); cf. Harris v. Woodrum, 3 Va. App. 428, 350 S.E.2d 667, 668 (1986) (recognizing express requirement in agreement that father's approval not be unreasonably withheld).

The court may also be eager to find that the right of approval was waived. For instance, in Hartle v. Cobane, 228 A.D.2d 756, 643 N.Y.S.2d 726 (1996), the father did not expressly consent to the child's choice of school, but he drove her to the campus and helped her move into a dormitory. The court held that these actions demonstrated an implied consent, and it refused to permit the father to argue that he disapproved of the school. See also Regan v. Regan, ___ A.D.2d ___, 678 N.Y.S.2d 673 (1998) (finding implied consent, where father failed to object after being told of child's choice of school and paid the child's first semester tuition).

Where the language of the agreement is clear, however, a right of approval will be enforced. See Hartle (father not required to pay expenses for summer school, as he had clearly and expressly refused to approve them); Cooper v. Farrell, 170 A.D.2d 571, 566 N.Y.S.2d 347 (1991) (where father had right to make final selection of school, father could not be forced to contribute toward private school he had not chosen); Jones v. Jones, 19 Va. App. 265, 450 S.E.2d 762, 762 (1994) ("Both parents shall agree on the college of attendance"); Harris v. Woodrum, 3 Va. App. 428, 350 S.E.2d 667, 668 (1986) ("subject to the approval of the particular school").

Where the agreement is silent on the choice of school, a promise to pay college expenses does not give the payor a unilateral right to select the child's college. Greenburg v. Greenburg, 26 Conn. App. 591, 602 A.2d 1056 (1992); Mack v. Mack, 148 A.D.2d 984, 539 N.Y.S.2d 219 (1989). The choice of college, however, may be a factor in determining the amount of reasonable college expenses. Mack; cf. Pharoah v. Lapes, 391 Pa. Super. 585, 571 A.2d 1070 (1990) (brilliant child declined full scholarship at Georgia Tech to attend Massachusetts Institute of Technology (MIT); holding over a dissent that reasonable support included part of the tuition at MIT). There is no constitutional obstacle to enforcing an agreement requiring parents to pay tuition at a religious college or private school. Hoefers v. Jones, 288 N.J. Super. 590, 672 A.2d 1299 (Ch. Div. 1994), aff'd per curiam, 288 N.J. Super. 478, 672 A.2d 1177 (App. Div. 1995).

One maverick decision measured the costs of the child's college education using an average of four area schools. The court did so even though the provision at issue required payment of "the cost of such education" without stating any specific school. Del Castillo v. Del Castillo, 420 Pa. Super. 520, 617 A.2d 26, 27 (1992). The unanimous holding in other cases, as noted above, is that the payor must pay the actual cost of the specific school which the child is attending.

Duration of Payment

If the agreement simply requires the payment of college expenses, there is no express time limit on the payor's liability. In theory, if the child took one course per year for two decades, nothing would prevent liability. In the real world, most institutions insist that an undergraduate education be completed at a reasonable pace, so the issue tends not to arise in the reported cases. Graduate school tends to take longer, but, as noted above, only rarely will the courts construe an agreement to require payment of graduate school expenses.

When the agreement contains an express time limit, that limit will be respected. While some agreements state the limit in terms of years, many agreements state the limit in terms of age of the children. An agreement to pay the expenses of minor children, for instance, would not include expenses after the age of majority. This type of agreement obviously is seen only in those few states where the age of majority is higher than 18. Where the agreement stated only that the father would pay the college expenses of the "children," a New York court held that the term was ambiguous and remanded for consideration of extrinsic evidence. Cortese v. Redmond, 199 A.D.2d 785, 605 N.Y.S.2d 506, 507 (1993). Another court held that an agreement to pay the expenses of the "children" did not permit termination of support at age 21. In re Wisdom, 833 P.2d 884, 886 (Colo. Ct. App. 1992).

Expenses Covered

Direct Education Costs. Where the agreement refers only to reasonable college expenses, it covers at a minimum tuition payments and educational costs (e.g., textbooks). Kier v. Kier, 454 N.W.2d 544 (S.D. 1990); Meek v. Warren, No. 97-CA-01444 (Miss. Ct. App. 1998). Tuition includes any fee charged by the college as a requirement for attending classes, regardless of the precise label. Baker v. Baker, 68 Ohio App. 3d 402, 588 N.E.2d 944, 946 (1990) (payor was responsible for both "general fee" and "undergraduate fee"); Meek (lab fees).

Room and Board. In addition, an agreement should include room and board costs if the child resides away from home. Reynolds v. Diamond, 605 So. 2d 525 (Fla. Dist. Ct. App. 1992); Meek v. Warren, No. 97-CA-01444 (Miss. Ct. App. 1998); Shea v. McFadden, 227 A.D.2d 543, 642 N.Y.S.2d 963 (1996); Allyn v. Allyn, 163 A.D.2d 665, 558 N.Y.S.2d 983 (1990); Kier v. Kier, 454 N.W.2d 544 (S.D. 1990); Douglas v. Hammett, No. 0313-98-4 (Va. Ct. App. 1998). A different result could be reached if the agreement gives examples of covered costs which include only direct costs of instruction. See Uram v. Uram, 65 Ohio App. 3d 96, 582 N.E.2d 1060, 1061 (1989) ("costs of . . . college . . . including the costs of such items as tuition, fees and books" did not include room and board).

If room and board costs are covered, and the child resides at home with the nonpaying spouse, the obligor must pay any extra costs incurred by that spouse due to the child's residence. Legg v. Legg, 44 Conn. App. 303, 688 A.2d 1354 (1997); Goss v. Timblin, 424 Pa. Super. 216, 622 A.2d 347 (1993). In other words, the payor does not escape liability for room and board merely because the child chooses to reside at home. The proper measure of cost for an at-home student is the actual cost to the custodial parent and not the hypothetical room and board cost which would have been incurred had the child resided on campus. Goss.

Activities. Expenses incurred for activities other than traditional study should be included if they result in credit toward graduation. See In re Dieter, 271 Ill. App. 3d 181, 648 N.E.2d 304 (1995) (separately billed flight school cost for aviation science major at state university); Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790 (1994) (advanced placement tests which yielded college credit, and expenses of semester at Cambridge). Courts seem especially willing to apply this rule to the costs of a personal computer. See Douglas v. Hammett, No. 0313-98-4 (Va. Ct. App. 1998); Meek v. Warren, No. 97-CA-01444 (Miss. Ct. App. 1998) (dicta).

Activity costs which do not result in credit toward graduation are probably not covered. See Kaltwasser v. Kearns, 235 A.D.2d 738, 653 N.Y.S.2d 147 (1997) (child's extracurricular soccer expenses were not covered under agreement to pay private school tuition).

Clothing. The cases are split on whether college costs should include expenses for clothing. A Virginia court held that clothing costs were included in Douglas v. Hammett, No. 0313-98-4 (Va. Ct. App. 1998). The opposite result was reached in Meek v. Warren, No. 97-CA-01444 (Miss. Ct. App. 1998), and Kier v. Kier, 454 N.W.2d 544 (S.D. 1990). Douglas could be distinguished on grounds that the child there had an athletic scholarship covering many of the expenses which the father would otherwise have had to pay.

Other Costs. Transportation costs, clothing costs, and a living allowance are not considered to be expenses of attending college. McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239, 240 (1993) ("college expenses"); Meek v. Warren, No. 97-CA- 01444 (Miss. Ct. App. 1998) ("educational expenses"). Medical expenses are likewise not included. Taplin v. Taplin, 611 So. 2d 561 (Fla. Dist. Ct. App. 1992).

Amount Covered

Where the agreement is silent as to the amount of college costs, it requires payment of all costs actually incurred, not merely reasonable costs. Simpkins v. Simpkins, 595 So. 2d 493, 494 (Ala. Civ. App. 1991) ("pay for the college education"; father liable for tuition at expensive private university); Hartley-Selvey v. Hartley, 261 Ga. 700, 410 S.E.2d 118, 119 (1991) ("any and all college expenses"); Forstner v. Forstner, 68 Ohio App. 3d 367, 588 N.E.2d 285 (1990). Likewise, the payor has no implied right to be consulted on the amount of costs incurred. Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991). If the payor wanted to pay only reasonable costs, or to have some input into the amount of costs incurred, specific provisions to that effect should have been included in the agreement.

Some courts will construe a silent agreement to contain an implicit limit based upon the payor's ability to pay. See Forstner (agreement contained such a provision, but its terms were met, as father was a multimillionaire); Carlton v. Carlton, 670 So. 2d 1129, 1130 (Fla. Dist. Ct. App. 1996) (assuming without explanation that agreement to "share equally in all education expenses" required payment of only reasonable costs).

A number of agreements limit the payor's liability to some function of the cost of a specific school most often a state-supported university in the state in which the agreement was signed. To enforce this type of agreement, the enforcing spouse must introduce specific evidence of the cost of attending the school in question. It is not sufficient merely to allege this cost in an affidavit. Morris v. Morris, ___ A.D.2d ___, 676 N.Y.S.2d 202 (1998).

Academic Performance

Where the agreement is silent on the child's course load or academic performance, it is error to imply a condition that the child must meet some minimum performance requirement. See Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. Dist. Ct. App. 1988) (error to hold that child must take 15 credit hours per semester and maintain a 2.0 grade point average). Provisions of this sort must be expressly stated if they are included in the agreement.

Financial Ability of the Payor

If the agreement requires the payment of expenses without making reference to the payor's financial ability, the payor's financial ability is irrelevant to the obligation. Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994).

Some college support clauses contain an express provision requiring the payor to contribute toward the expenses only if his financial condition so permits at the time when the child actually attends college. Where the agreement does not include a specific test, the court will make its own determination of the payor's ability to pay. See, e.g., Stefani v. Stefani, 166 A.D.2d 577, 560 N.Y.S.2d 862, 863 (1990) (father required to pay if "financially able"; father had net annual income of $23,500; father had ability to pay total of $21,500 in expenses spread over six years, but payment of interest on this amount would be unduly burdensome); Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790 (1994); Whelan v. Frisbee, 29 Mass. App. Ct. 76, 557 N.E.2d 55, 57 (1990) (mother promised to contribute "in good faith" toward her children's college expenses; where mother had borrowed $100,000 to invest in questionable business, mother should have made a contribution under the agreement); Goss v. Timblin, 424 Pa. Super. 216, 622 A.2d 347, 348 (1993) (parties promised to "assist the children to obtain a college education to the best of their ability"; finding that husband had ability to contribute). Where the agreement stated quite expressly that the father would be the sole judge of his own ability to pay, one court held there effectively was no enforceable obligation. Charles v. Leavitt, 264 Ga. 160, 442 S.E.2d 241 (1994).

Where the agreement speaks in terms of good faith or reasonable costs, the court will look to its own objective definition of these terms and not to the payor's own subjective definition. Harvey v. Daddona, 29 Conn. App. 369, 615 A.2d 177, 178 (1992) ("reasonable costs" did not mean only those costs which the father deemed reasonable). The cases are split on whether the ability to pay can be considered as one factor in determining reasonable costs. Compare Carlton v. Carlton, 670 So. 2d 1129 (Fla. Dist. Ct. App. 1996) (relevant), with Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994) (not relevant).

Courts are generally reluctant to construe financial ability provisions to place automatic limits upon support, preferring instead to evaluate the payor's entire financial condition. See In re Sawyer, 264 Ill. App. 3d 839, 637 N.E.2d 559 (1994) (college support "based upon" husband earning income of $55,000 set the baseline for modification under the changed circumstances test, but did not absolutely require reduction in father's obligation if income dropped below the stated level).

The payor cannot avoid paying college expenses under a financial ability provision if his or her financial problems are self-inflicted for the bad-faith purpose of reducing support. In other words, in determining the ability to pay, the court can follow normal imputation of income principles. If the payor did not act in bad faith, however, self-inflicted financial inability can be considered. In re Sawyer, 264 Ill. App. 3d 839, 637 N.E.2d 559 (1994) (payor imprisoned for tax evasion; inability to pay was a factor).

If the agreement requires the payment of expenses without mentioning need, lack of need is not a defense to the obligation. Frank v. Frank, 402 Pa. Super. 458, 587 A.2d 340 (1991).

Financial Aid

Where the agreement is silent, the payor's obligation is not reduced merely because the child received financial assistance from another source. Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991); Frank v. Frank, 402 Pa. Super. 458, 587 A.2d 340 (1991). If the financial assistance is provided by the college itself, so that it reduces the amount of the student's tuition bill directly, rather than satisfying a portion of that bill, the result might be different. See Douglas v. Hammett, No. 0313-98-4 (Va. Ct. App. 1998) (where child had basketball scholarship, father was liable only for uncovered expenses).

If the agreement anticipates that the child will get financial assistance, that assistance will always reduce the payor's liability. See Hartle v. Cobane, 228 A.D.2d 756, 643 N.Y.S.2d 726 (1996) (agreement provided that parties would encourage the child to obtain financial aid; father was liable only for costs above amount of student loans); cf.Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) (father agreed to pay costs above "scholarship, grant or other assistance"; father had to pay costs reflected by student loans).

Contributions of the Child

Where the agreement is silent on the child's contributions, the obligor must pay the entire cost of college. Neither the child nor the other parent is under any duty to make his or her own contributions. Fritch v. Fritch, 224 Ill. App. 3d 29, 586 N.E.2d 427 (1991); Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487 (1994); McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239 (1993).

Courts look with favor, however, upon specific provisions requiring contribution by the child. Thus, these provisions are generally fairly enforced. See Troha v. Troha, 105 Ohio App. 3d 327, 663 N.E.2d 1319 (1995) (agreement to pay college expenses with existing college funds of children could not be enforced directly, as children were not parties to the contract; but depletion of college funds were construed as a condition to father's liability for further sums).

Courts are reluctant to hold that the expenses of one child must be paid with the college expense funds of another. See Troha, 663 N.E.2d at 1324 (requirement that children's funds be used for "their college education" required that each child's funds be used for that child, and not that both children's funds be used for the first child alone).


College support provisions are most frequently enforced by the custodial parent. This parent has normally paid the costs at issue and thereby has obtained the right to sue the obligor for reimbursement. E.g., In re Dieter, 271 Ill. App. 3d 181, 648 N.E.2d 304 (1995).

The child has standing as a third-party beneficiary to enforce a college support provision. In re Smith, 21 Cal. App. 4th 100, 26 Cal. Rptr. 2d 133 (1991); Noble v. Fisher, 126 Idaho 885, 894 P.2d 118 (1995). When the child has paid the costs in question, or is directly liable for paying them, the child would seem to be the party to whom the expenses at issue should be paid.

The Smith court held under very limited circumstances that the nonobligor spouse cannot file an action for damages against the obligor spouse, and that this remedy lies exclusively with the child. The court admitted that a reimbursement theory had not been pleaded, see 26 Cal. Rptr. 2d at 138 n.7, and this admission severely limits the value of the holding.

Smith also expressly held that the nonobligor spouse has standing to bring an action for specific performance. Thus, the court can probably order that the payor comply with the agreement by paying expenses directly to the school. See also Baker v. Baker, 68 Ohio App. 3d 402, 588 N.E.2d 944 (1990). This sort of order has the practical advantage of avoiding the need to bring a new action for reimbursement every time the obligor fails to make a payment.


There is no serious doubt that a college education is essential to success in modern society. For this reason, a growing number of states permit the court to order a parent to pay a child's college tuition under the law of child support. While a majority of states continue to reject college tuition child support, courts in these states are very willing to enforce college tuition provisions in separation agreements. Indeed, in light of the cases cited in this article, it is safe to say that college tuition provisions are construed liberally to achieve the parties' declared purpose of providing their children with a quality college education. The only alternatives to this rule of broad construction are to leave the children without a college education or to finance their education with public funds alternatives which suffer from serious problems. The current trend toward liberal enforcement of college support provisions is good public policy.

Nevertheless, there are limits to the purposes which can be achieved by any contract theory. Almost all responsible parents assist their children with paying for college, and many responsible divorced parents do so in a separation agreement. By allowing irresponsible divorced parents to escape all liability for college, the law rewards behavior which almost everyone would agree is selfish and undesirable. In view of the recognized importance of a college education in modern society, the best policy is to make all parents responsible for providing their children with reasonable financial assistance in paying the costs of college.

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