College expenses in Virginia divorce

Posted on Jul 15, 2016 by Katie Carter

I have a nephew. Just one. He is the very first, though I’m sure a few more will follow pretty quickly. Before my nephew was born, we hadn’t had a kid in the family since my brother, my sister, and I were young—and, obviously, that has been awhile. My nephew is the first grandchild for my parents, so, needless to say, he’s a little extra special.
For my sister in law’s baby shower, I opened a 529 account for him. I was really excited to do it because, after having spent so much time (and, frankly, so much money) in college and law school, I felt like I was taking a step that would protect him from having to go through what I’ve been through. I don’t want my nephew to feel the crushing weight of student loan debt. So, long story shore, I plan to help my brother and sister in law pay for my nephew’s college so that he can avoid as much of that as possible.
I did some reading before I opened his 529 account, and the information I found scared me. I read that, by 2030, based on the recent inflated costs of college education, the cost for a child to attend a public, in state, four year university could be as high as $205,000. Who knows, though? With the way college expenses have been rising (well beyond the rate of inflation), it could be anything by then.
Sitting here, even now, typing that number makes my stomach churn. Who can afford to pay that? In fact, reading further, several articles opined that, in order for an average family to save that much, they’d have to put nearly $500 a month into a 529 or other savings account. They went on to say that, for families where that wasn’t really a reasonable amount, they could plan to save for half to a third of the overall college expenses—making up for the difference between what they could save and what college costs by then by paying extra monthly once the child actually enters college and, of course, having the student work through school. They even said that having the student take out loans is, for many, a feasible option, and started talking about how much student loan payment a child could reasonably be expected to carry.
With the state of higher education the way it is in the United States these days, the costs of college are a serious and profound concern for most parents—and devoted aunties. It’s not an easy thing to pay for but, meanwhile, more and more jobs are requiring that students have a relatively high level of education to even be considered for entry level jobs. There are scholarships available, but not nearly as many as there are mommas who desperately want (or, honestly, need) their child to receive one.
I remember dutifully filling out my FAFSA form (you remember—the free application for federal student aid) every single year, in the hopes that some stone would be overturned that would force the federal government to provide my parents with some assistance with my not unsubstantial educational expenses. In law school, when my parents put the burden of the expense of school squarely on my shoulders (which was totally fair of them), I remember desperately filling it out, hoping against hope that somehow my plight would be recognized and financial assistance provided.
And it was, of course—not so much in terms of scholarships (though I did get a few of those through the schools I attended), but loans. Long story short, though, I graduated, got a job, and have been dutifully paying on the balance ever since. And will continue to do so, in all likelihood, long after my unborn (unconceived, in fact) children go to college themselves.
If you’re headed towards divorce in Virginia and you have minor children, you’re probably concerned about their future college education. Of course, you’re not alone in that. Millions of parents every single year (in fact, I should probably say billions!) worry about their kids futures, and the quality of their education is chief among them.

Will the court give me child support while my son or daughter is in college?

In Virginia, though, you can’t expect too much help from the law. Other states require dads (or, to be fair, non custodial parents—because it’s not always dads) to pay support for their children after 18, particularly if they are enrolled in college. It doesn’t work that way in Virginia. On the contrary, child support ends—formally, irrevocably (unless there’s some sort of serious physical or mental disability)—when the child graduates high school or turns 19. Because the law doesn’t allow for child support to be paid beyond that point, there’s nothing a judge, attorney, or guardian ad litem can do to change this, no matter how well or thoughtfully you prepare your case. Child support ends because, in Virginia, at least, a child over the age of 19 is no longer a child but is instead an adult, and no duty of support can be owed to an adult child (again, unless there’s some kind of serious physical or mental disability).
Likewise, we can’t go to court and petition for the judge to force a dad (or non custodial parent) to pay for expenses related to college. There’s no provision for these types of payments in Virginia law and, like we’ve already briefly discussed, child support as such has ceased. There’s no other category into which the judge can place the money and force the non custodial parent to pay. At the time the child becomes an adult, the non custodial parent (and also the custodial parent) no longer have an obligation to support the child.

What if he has already agreed to provide support for our child while he or she is in college?

That’s a start! In fact, in most cases where we see separated or divorced moms and dads sharing the expense of college, they do so because of some kind of an agreement between the two of them.
If he’s cool and he’s willing to pay and he actually pays, you have no problem—regardless of whether your agreement was verbal or was made in writing. Still, most of the time, it’s far, far safer to have an agreement in writing, because we have something to prove that the agreement existed.
Lots of people draft separation agreements when they get divorced that include provisions requiring the parents to share the costs of college according to some particular plan they devised. In many cases, we include provisions like these. They’re tricky, though, because, especially if husband is represented by an attorney, the attorney will insist that the provision be removed. Why? Well, because he (or she) is supposed to zealously represent your husband’s interests, and he (or she) probably doesn’t think it’s a good idea for him to promise, in writing, now to provide financial support for the kids when they are in college. Maybe he’ll want to provide support when the time comes, but maybe he won’t and by refusing to add that provision to the separation agreement, he (or she) is protecting his (or her) client.
Still, most of the time, when we can get those provisions added, we can get the court to enforce them under contract law principles. Even though the court doesn’t have the authority to order someone to pay for their child’s college expenses, the court can uphold a contract that was executed between two adults of sound mind and force both sides to perform.
I know those aren’t the answers you were hoping for, but we are all limited by the laws of the Commonwealth of Virginia, and can only do what it allows us to do. Still, many dads ARE willing to put college expenses in a separation agreement or, even if they won’t, will, when the time comes, pay something towards their kid’s education, so don’t despair. You’re not stuck paying for it all yourself. And, when the time comes, if he really is a jerk about it, let it go, because there’s nothing you can do. And, hey, you can at least give the kids some beer money.
For more information about college expenses and how they work in a Virginia divorce, give our office a call at (757) 425-5200.