Even before Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), overruled Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979), and held that it was unconstitutional to require unmarried parents to provide college support for their adult children when there was no similar obligation for married parents, I uniformly discouraged my clients from agreeing to court-ordered college support. Because the Risinger factors created such high barriers to ordering college support, in my seventeen years of family law practice prior to Webb, I never had a court order my client, or the opposing party, to pay college support. While the Supreme Court had Webb under consideration, I asked a local family court judge with a dozen years on the bench how often he’d ordered college support. He recalled only one case, which involved a millionaire father and a very modest support amount. Even before Webb it was hard to get a court to require a parent to pay college support.
That didn’t stop many parents from agreeing to court-ordered college support, sometimes for children who were a decade or more away from matriculation. Even in this post-Webb era parents continue to agree to court-ordered college support. One can understand the impulse: who wants to be the bad guy (the bad girl?) refusing to help one’s child attend college? Still it’s an impulse that should be resisted.
There are typically three reasons parents refuse to provide financial support for their children’s college. First are the parents whose relationship with their child is so tenuous that they don’t care if their child attends college or not. Often these parents are partially (or largely) to blame but sometimes the other parent or the adult child has been so obnoxious that the parent is driven away. Second are the parents who simply disapprove of the lifestyle choices their young-adult child is making. Sometimes we might find the parents to be unduly judgmental but other times these parents are cutting off their children for perfectly legitimate reasons. Often the only control parents have over their young adult children is the power of the purse (the wallet?). Court-ordered college support takes away that power.
A third reason many parents don’t provide financial support for their children’s college is that they lack the means to do so. Many parents of college-age children are left with the choice of saving for retirement or paying for their children’s college. Sometimes these parents’ financial choices are even more stark. No person should have to live in their car to pay for their kid’s college. Court-ordered college obligations take these budgeting decisions out of a parent’s control.
I greatly support my daughters’ college educations–for the next four years private college will be the biggest item in the family budget–but there’s no way I’d ever agree to a court order requiring me to make these payments. Disobeying child support orders is an easy way to end up incarcerated. Civil contempt for non-support is Western civilization’s last debtor’s prison. Given a choice between paying my mortgage or paying for my children’s college, my children would be on-their-own. But add a court order to the mix and the choice now becomes foreclosure or jail. Then foreclosure doesn’t look so bad. Parents agree to court-ordered college support with the best intentions but when their budget is stretched, and they realize the court order removes budgeting flexibility, they frequently regret it.
Yet there is a limited factual circumstance in which it has made sense for a client to agree to court-ordered college support. This occurs when the child is near college age or in college, and the client has the ability and willingness to pay 100% of the child’s need for college, but the client can get the other parent to commit to a certain amount or percentage of these expenses so long as the client agrees to pay the remainder. In this circumstance, by committing to paying college support via court order, the client can obtain a court order requiring the other parent to pay a portion. Since these clients would have committed to paying 100% of the child’s need if the other parent wasn’t under a court-ordered obligation to pay a portion of college support, obtaining this commitment from the other parent can be enough of a benefit to justify one’s client committing to this obligation.
However, absent this very limited circumstance, in eighteen years of family law practice, I’ve yet to see another circumstance when it make sense of a client to commit to court-ordered college expenses.