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 expense payments.
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.