Imagine if you will that your son or daughter in the latter part of senior year of high school has performed well on standardized testing as well as overall grade point average and is reviewing on the internet possible selections for college applications. University of Massachusetts at Amherst is perhaps $30,000 to $40,000 less than a private four-year college such as Bates, Colby or Middlebury. The disparity in expenses becomes even greater between the state school for an instate student versus a school like Sarah Lawrence, where the disparity might be $50,000 annually.
As responsible parents, you speak to your spouse, your child, make applications for scholarships and grants, and ultimately come to a family decision as to where your child can apply and pay for educational expenses. This sounds like a reasonable and fairly standard course of action. And in the end, if you find that the unassisted expenses of certain schools is beyond your financial ability, you make a family decision that perhaps your child should attend University of Massachusetts at Lowell and commute from home. This is perhaps not the college experience that you wanted for your child, but today at the expense of between $50,000 to $60,000 per year for a private four-year college, families must adjust their expectations.
Now let us change the facts of this situation somewhat. Suddenly at your dining room table on Sunday afternoon, in addition to you, your child, and your spouse sits an individual in a black robe, wielding a pen, who with an authoritative stroke can readily determine which school your child will attend and how much that you will pay. Who is this interloper who dares to breach the serenity of your weekend afternoon. But of course, it is the probate court judge who is determining or has determined the issues in your case. You are not sitting down as a family to discuss what you can afford in this scenario. Rather you are in a courtroom represented by counsel, who is presenting argument to this robed individual, regarding respective income and assets of you and your soon to be former spouse, and who will make this determination of which school your child may attend and how much you will each pay. The obligation to pay for college is daunting for the average individual in an intact family, but add the spice and juice of a nasty divorce and the authority of the court to intervene, and you as one of the litigants may find yourself overwhelmed with the financial obligation.
This dramatization is somewhat over the top in exaggeration but not by much. The probate court does have the authority under statutes to order child support for your unemancipated child who is over 18 but a full-time student and residing principally with your former spouse. The loss of control over your finances and ability to shape and help determine your child’s path is taken away with the swipe of a pen. Therefore, what can you do in this situation?
In 2009 the Appeals Court of Massachusetts issued a decision of great import, Mandel v. Mandel, 74 Mass. App. Ct. 348, 906 N.E.2d 1016 in which the father objected to his daughter attending a private college as distinguished from a less expensive public college. The Appeals Court outlined parameters when a parent can be limited to pay up to state school educational expenses. Obviously if the parent is a partner with Bain & Co. and is making in excess of a million dollars a year, the parameters outlined in Mandel will not fit that parent. However the vast majority of litigants who pass before the bar of the probate court judge are middle-income and the Mandel decision is extremely important both in the negotiation of your divorce agreement or presenting argument in a divorce hearing regarding your child’s educational expenses.
PhilipJByers
Philip J. Byers, Attorney 