Divorcing couples with children sometimes worry about who is going to pay for their children's college education after the divorce once their children graduates high school. They want a guarantee that their soon to be ex-spouse will share in the college expenses of their children. This is specially the case when the other spouse has moved on with a new family. The old family becomes less of a priority.
In California, there is no legal basis for a spouse to request the family court to order the other spouse to pay for their adult children's college expenses. However, the divorcing couple can agree to pay for their adult children's college education as part of a marital settlement agreement. Family Code section 3587; In re Marriage of Rosenfeld and Gross, 225 Cal. App. 4th 478 (2014). Pursuant to statute and court cases, college expense payment provision in a stipulated marital settlement agreement, as incorporated into a Court's judgment, constitutes adult child support such that court had jurisdiction to modify the provision in light of the settlement's failure to specifically provide that adult child support was not subject to modification. In re Marriage of Rosenfeld and Gross, 225 Cal. App. 4th at 488 (2014). Providing for payment of adult children's college expenses is recognized more of an "add on" to adult child support. Family Code 4062(b)(1).
However, the parties may "opt out" or restrict the court's jurisdiction to modify an adult child support order (including college expenses) but the parties must expressly and specifically state in their marital settlement agreement that any resulting adult child support order will not be subject to modification or termination by the Court because the adult child support order is rooted in the parent's contractual agreement. Cal. Family Code Section 3587, 3651(a).
So if you are concerned about your spouse sharing for the college tuition and expenses of your children after the divorce, you should negotiate a provision in your marital agreement that both of you will share on the college tuition and expenses of your children. In doing so, you should also think about whether you want this provision to be non-modifiable or not. In the absence of a specific provision limiting adult child support as non-modifiable and non-terminable, the default is that child support is modifiable. Sometimes, leaving the adult child support provision as modifiable protects the spouses from unforeseen future events such as a disability or retirement which limits the earning capacity of a spouse and ability to comply with the adult child support provision in the MSA.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC. This article is not a solicitation.
Attorney Kenneth Ursua Reyes is a Board Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APLC. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com or visit our website at Kenreyeslaw.com