By Hope Tuber
Most divorces can be settled obviating the need for protracted and costly litigation. When the parties reach a settlement, it is important that the agreement for the children of the marriage. What parties sometimes over look is what is going to be in their best interests ten or fifteen years in the future. If you enter into an agreement which is silent on a topic such as college, you may have to go back to court.
Unlike the obligation to provide support for a child’s basic needs, support of a child’s education is not mandatory. Pursuant to Domestic Relations Law §240(11-b)(c)(7), a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the Court’s discretion is not improvidently exercised.
When negotiating your settlement agreement, if you have children, college is something you should absolutely include in your agreement, even if you are not going to pay for it. If you do not provide for it in your Agreement, you are leaving yourself open with the possibility of having to relitigate the issue years later. Generally speaking, Court’s like to provide for the children’s education, especially if both parents are college graduates. However, you can limit your financial exposure. Typically agreed to is that the parties will agree to pay their pro-rata share of college up to the cost of attending the State University of New York (SUNY). So, for example, if your child gets into Harvard, you are only responsible to pay your pro-rata share of what it would cost if you child were to attend a SUNY school.
How do you determine your pro-rata share? That depends. The first option is to base it on the parties’ income at the time the agreement is being drafted. If your income is steady and you do not expect it to increase much in the future, that may be the best option. If you think your spouse’s income may significantly increase in the future, you may want to provide that the pro-rata share is to be determined based on the tax returns for the year prior to your child entering into college.
If you do not provide for college in your Agreement, your spouse may be able to drag you back into court years later to have you pay for it. If the parties do not intend to pay for college, a one or two line sentence in the Agreement expressing this can save both parties the costs and uncertainty that comes with litigation.