High on the priority list of spouses who separate and divorce is the need
to make sure that their children’s college education will be funded.
No parent wants their child to be burdened with college debt if the household
income can ensure that some—or all—of college can be paid
from the parents’ resources.
Since 1997, however, Colorado courts have been stripped of the power they
used to have in
divorce cases to order that one—or both—parents pay for a child’s
higher education. In that year, the Colorado state legislature passed
a law exempting post-secondary education expenses from “child support”
that could be ordered as part of a divorce case. Under the new law,
child support stops when the child reaches age 19 (before the child completes college).
The statute gives no circumstance under which the court can order the
parent(s) to pay for postsecondary education expenses that are typically
incurred after the child is 19 years old.
Today, the only method to ensure that one or both of the divorced parent(s)
will provide for the child’s college expenses is for the parents
to enter into an agreement for the payment of those expenses as part of
the marital dissolution proceedings. This agreement, called a “Separation
Agreement” is a contract between the divorcing spouses that can
set forth the parties’ agreement for division of marital assets,
retirement benefits or family business ownership. Colorado law provides
that a Separation Agreement will be adopted by the judge as an order and
will be a judgment of the court in the dissolution proceedings unless
the court finds any evidence that the agreement was entered into as a
result of fraud. Once the Separation Agreement is adopted by the court,
and becomes a judgment at law, either party can seek enforcement of the
agreement in the courts.
The Separation Agreement can also set out the parties’ agreement
as to child support, parental responsibilities, parenting time and including
an agreement between the parents as to the payment of post-secondary education
for the child, even though the child will be “emancipated”
(i.e. over the age of 19) for that part of the agreement. However, since
the court retains jurisdiction over any issue regarding the welfare of
the child, the judge will scrutinize any provision of the agreement that
affects the child’s welfare before adopting it as a court order.
This means that an agreement between the parents as to payment of the
child’s post-secondary education expenses will be examined by the
court in detail before the court makes that agreement a binding judgment
on the parties.
Once the judge has adopted the Separation Agreement, including the parents’
agreement as to the payment of their children’s post-secondary education
expenses, that provision will be enforced through the court system just
as any other child support provision is enforced—even though the
child will be over the age of 19 when receiving the benefits of the college
The Separation Agreement can also provide that the losing party must pay
the attorneys fees of the winning party in any court proceeding for enforcement
of the terms of the Agreement (even after it has been adopted as a court
order by the court.) Courts will enforce this provision and will order
that the losing party pay the attorneys fees of the prevailing party in
any action to enforce the terms of the Settlement Agreement. No doubt
this kind of provision in the Separation Agreement will encourage parties
to resolve their disputes about the Separation Agreement before seeking
the assistance of the court.
The preparation of a Settlement Agreement, and the drafting of provisions
for the payment of post-secondary education expenses in that agreement,
require experienced legal counsel. Experienced family law attorneys at
Clawson & Clawson LLP can assist in drafting a Settlement Agreement
in your dissolution proceeding, or represent you to enforce the terms
of a Settlement Agreement entered years ago.