NCSL LegisBrief: Child Support and Education Expenses Past The Age of 18

NCSL LegisBrief

Briefing Papers On the Important Issues of the Day

Child Support and Education Expenses Past the Age of 18

By Stephanie Walton

April/May 1999
Volume 7, Number 24

All state child support guidelines include an age at which financial support normally ends, but nearly all allow for deviations in certain cases. Most focus on children's college or vocational education expenses or on children who have special needs and are unlikely to become self-supporting. Frequently, state legislators build these common deviations into their guidelines.

Termination of Support at Age of Majority. Thirty-eight states terminate support at the age of 18 unless the child is still attending high school. Most of these states permit support until the age of 19 or graduation from high school, whichever occurs first. Georgia law permits courts to order support until the child turns 20 or completes high school. Rhode Island modified its guidelines in 1998 to provide for support to the age of 19 or 90 days past high school graduation, whichever occurs sooner.

Child Support for Higher Education. The U.S. Commission on Interstate Child Support recommends that state guidelines direct the courts to award child support up to age 22 if the child is enrolled in good standing at a college or vocational school. This approach grants the courts discretion in individual cases, while setting a general standard that parents can be expected to pay for higher education.

Seventeen states make provisions specifically for higher education within their guidelines or in case law. Hawaii extends support until the age of 23 if the child is enrolled in an accredited higher education institution, and Washington's guidelines permit the court to order college support at the court's discretion. South Carolina's guidelines contain a specific list of factors for courts to consider in awarding support while a child attends college. The family court may order support for children over 18 in "exceptional circumstances," and where the characteristics of the child indicate that: 1) she will benefit from college; 2) she demonstrates the ability to do well or make satisfactory grades; 3) she cannot otherwise go to school; and 4) the parent can afford to help pay for the child's education. In Colorado, courts may not order child support and payment for college at the same time. Colorado law allows the court to determine if it is appropriate for parents to contribute to the costs of higher education, and if so, the child support order must be terminated and both parents must be required to contribute.

Four states address higher education needs generally within their guidelines without specifying college support. In Florida, courts may require continued support if a child is "dependent," but attendance in school does not automatically mean that a child is dependent. In Massachusetts, support can be extended up to the age of 23 for a child enrolled in an "education program." Massachusetts law also requires that children reside with the custodial parent until the age of 21 in order to receive support past the age of 18. Guidelines in the District of Columbia and Utah are ambiguous in their treatment of secondary or post-secondary schooling. The District of Columbia does not end support until the age of 21, and the courts have ruled that higher education may be included in orders until the age of 21. Utah guidelines state that in divorce actions, support may be ordered until the age of 21.

Twenty-seven states have not addressed child support for higher education in their statutory or case law. These states, however, do permit courts to enforce private agreements between the parents concerning educational expenses. In Alaska, the court ruled that the state statute does not give courts the power to require support for college expenses if the child is past the age of majority, but private contracts may be enforced.

Important Court Cases. Pennsylvania is the only state where the duty to provide college support has been found unconstitutional by the state supreme court. The Pennsylvania legislature enacted a statute in 1993 allowing courts to order that parents provide for higher education expenses if the parents are separated, divorced, unmarried or otherwise subject to an existing support obligation. In 1995, however, the Pennsylvania Supreme Court ruled that the statute violated the constitutional right to equal protection because under the law, divorced parents could be required to pay for a child's college education while married ones could not.

Similar challenges in other states have been unsuccessful. For instance, in December 1998, the Oregon Court of Appeals overturned a lower court decision that the Oregon statute allowing courts to order college support was unconstitutional because it discriminated between divorced parents and married parents. The court of appeals reversed the decision, finding that there is a rational distinction between divorced parents and married parents. The court explained that "even if most divorced or separated parents could cooperate sufficiently to decide whether to support their children attending school. there will be instances in which children will not receive support from their parents to attend school precisely because the parents are divorced or separated, despite the fact that.it is in the children's best interest for them to do so."

Illustration for Child Support for College Expenses is not available online. Please contact the author for a copy or view the Adobe Acrobat version. Adobe Version

Selected References

Morgan, Laura W. Child Support Guidelines, 1998 Supplement. New York: Aspen Law and Business, 1998. "Termination of Child Support and Support Beyond Majority," (table on NCSL's Child Support Project Web site), http://www.ncsl.org/programs/cyf/educate.htm

Contacts for More Information

Stephanie Walton
NCSL-Denver
(303) 364-7700 x1552