Post high-school education expenses

Ordinarily, a divorcing parent has no legal obligation to pay for a child's college expenses. The theory is that we don't require intact families to pay for college, so how can we require divorced families to pay for college. But, parties can bargain and contractually obligate themselves to pay for college, as part of a property settlement agreement that settles the divorce.

In the recent case of Mazurek v. Russell, 96 A.3d 372 (Pa. Super. 2014), the PA Superior Court dealt with a father who signed a Property Settlement Agreement obligating father to pay 100% of the college expenses for the parties children "with the parties mutual consent, which consent shall not be unreasonably withheld".

Pursuant to the PSA, the father paid for 100% of the two older children's college educations. The parties youngest child wished to attend a college that would cost 50K a year. The youngest child and father were estranged for 5 years and the child did not include father in his decision of which college to attend. He simply choose a college and present father with a bill for 200K over four years. Father did not consent to the 50K/year college and refused to pay the college expenses.

Father stated that he did not consent because of the estrangement and the child's poor grades in high school. But, apparently , Father could afford to pay for the college. Because, Father stated that he would pay for the college if (a) the estrangement ended (b) he could access the child's grades (c) the child kept at least a 3.0 GPA and (d) the child would not take his car to the college.

The trial court agreed with mother that father's failure to pay for the college was in contempt of the property settlement agreement. Father appealed. The PA Superior Court then had to decide whether father's refusal to consent to the college costs was "reasonable" and appropriate. A PSA is interpreted by the rules of contract law. Under contract law, a court may not modify the plain meaning of the contact, but may only interpret it.

The Superior Court determined that the phrase "unreasonably withhold" was ambiguous. So, it looked at other evidence to determine the meaning of the phrase. The court found that father's reasons for withholding consent (poor grades, estrangement etc.) were reasonable and overturned the finding of contempt against father.

This decision left the case in a mess. What happens if the child ends his estrangement? What constitutes an estrangement? Would father get a refund (somehow) for the child's first year of college. What about a cheaper college? What about applying for student aid?

The moral of this case is to find an attorney who understands how to property draft a property settlement agreement and the correct language to reach a desired outcome. With a clearer and longer provision, the child could have been ensured a paid college education or (alternatively) father could have avoided protracted litigation on his obligation. Also, the child could have reached a different outcome by consulting with this father about the decision beforehand, even if they remained personally distant.

Drafting provisions regarding college education is perilous and requires experienced counsel. Some of the pitfalls include: How old can the child be? How long can they stay in school? What grades must they keep up? What counts as a college or university? Is there a cap on expenses? Do room and board include expensive accommodations? What about financial aid? Must the child show proof of seeking financial aid? What happens if the payor loses his/her job or become disabled? What happens if the other side becomes rich? What consultations? etc. etc.