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Paying for Your Kids’ College Education after Divorce – Drescher v. Gross

When parents separate or divorce, there are often a number of legal issues to consider related to the well-being and best interests of their kids. At the top of the list are questions of child custody and support. The latter category typically includes money for basics like food, clothing, shelter, and health care. Recognizing that circumstances can change over time, California divorce law generally gives courts the authority to later modify custody and support orders when necessary.

learning-with-pencil-948188-mThese days, divorcing spouses may also want to decide how they’ll pay for their children’s higher education costs. In Drescher v. Gross, California’s Second District Court of Appeals explains that college funding agreements may be considered a form of “adult support,” and that spouses may therefore limit a court’s ability to later modify an order as to how these educational expenses will be paid.

Husband and Wife separated in 2001 after 14 years of marriage. They entered into a marital settlement agreement (MSA) providing that they would split the expenses for supporting their three kids and share joint physical and legal custody of the children. The MSA also stated that the parents would each pay for half of their children’s costs for attending college in the state. A trial court later entered a judgment dissolving the marriage and incorporating the terms of the MSA.

A trial court agreed to modify the support order 10 years later, after finding that Wife was disabled and earned about $23,000 compared to Husband’s $400,000 annual income. Wife then sought to modify the college expenses order on the same grounds, a move that the judge this time denied. The trial court said it lacked the authority to modify the order because the spouses had clearly intended that this money not be treated as child support. Specifically, the trial judge said there was nothing in the MSA that directly stated that the college expenses should be treated as child support.

“Adult Support” Agreement

On appeal, the Second District agreed that divorcing spouses may choose to limit a court’s ability to alter “adult support” orders like those related to the sharing of higher education costs. “In contrast to the court’s broad jurisdiction to order minor child support, which is rooted in parents’ law-imposed duty to support their children until adulthood, the court’s jurisdiction to order adult child support under section 3587 (of the California Family Code) derives entirely from the parents’ agreement to pay adult support, and the statute grants the court limited authority to make a support order to effectuate the agreement.”

Modification OK’d Under Circumstances

That said, the Court disagreed with the trial court that the spouses had limited judicial review of the college expenses order in this case. Instead, the Court said the parents had to include specific language stating that the college expenses were not to be considered child support in order to limit judicial review. Because they didn’t do so in this case, the Second District reversed the lower court’s decision and remanded the case back to the trial judge to determine whether modification was warranted based on the change in circumstances.

As this case shows, complex child support issues often arise in California divorce cases. It’s important that a person considering a divorce consult an experienced family lawyer before starting the legal process. With more than 30 years of experience representing clients in divorce and other related proceedings, San Jose divorce lawyer John S. Yohanan has the experience and ability to help guide you through the process while ensuring that your legal rights are protected. Contact us online or call our office at (408) 297-0700 to learn more about how we can help you.

Related blog posts:
California Parents Enforcing Child Custody Orders After the Child Has Reached the Age of Eighteen — Williams v. Cavers
New Jersey Teen Sues Parents for Support and College Expenses – How California Emancipation Laws Might Apply
California Divorce, Pensions, and Property Division — In Re Marriage of Green