Before 1976 there was really no basis in Massachusetts statutory law to impose educational costs on a divorced parent after a child reached the age of majority (traditionally 18 years). Then G.L. c. 208, sec. 28 was enacted. The court was now allowed to make orders regarding maintenance, support and education of an “adult dependent child” of divorced parents, provided that the child was at least 18 years old but not yet 21 years old. In 1991, the statute was again amended and it raised the upper age limit to include a child not yet 23 years old. That amendment also provided that said child must be domiciled in the home of a parent and “primarily dependent” upon the parent for maintenance due to enrollment in an undergraduate educational degree program. This statute effectively covers most if not all situations with regard to reimbursment and payment for college tution or other expenses. As there is no statutory mandate for a parent to pay for their child’s college expenses, we use statutory and case law to interpret a parent’s obligation to pay for college.

Pursuant to G.L. c. 208, sec. 28 an “adult dependent child” is a child between the age of 18 up to 23 years that continues to be primarily dependent for maintenance upon a parent with whom he or she is domiciled. In deciding whether a child is “primarily dependent” the court looks at factors such as direct financial contributions of both parents. Further, the court looks at parties’ resources, indirect financial obligations incurred by the custodial parent (such as the cost of maintaining a room for the child in the home as that cost relates to expenses such as rent, mortgage payments, insurance, utilities, etc.), as well as relevant noneconomic factors, such as a parents’ respective involvement with the child’s care and well-being.

Another interesting issue not firmly settled by either case law or statutory law is whether in certain circumstances the Probate Court has the power to order parents to establish an educational trust for the future college education of a child. The Massachusetts Child Support Guidelines typically deal with the “current needs” of a minor child only, and thus an order to create an educational trust is in most cases “premature”, due to the fact that the minor child is not yet in college or about to enter it. The main problem is that if an educational trust is enacted by the Court it would necessarily involve giving parental property to a child which is not authorized.

In the vast majority of college expense cases the child support guidelines only allows orders pertaining to “current needs” of minor children (those in or about to be in college). Thus, the Court realistically should only consider an order for reimbursement or payment for college expenses for “dependent children” about to attend or who are already enrolled in a higher education program (undergraduate).

There is some case law allowing the creation of an educational trust in specific situations, such as where funds are presently available to fund the trust and both parents have expressed concern for funding a child’s future college education. Further, an educational trust would also apply to a situation where one or both parents have exhibited reckless economic and social behavior, warranting a finding that, in the absence of a trust, it is unlikely that sufficient funds would remain for funding the child’s college education. A trust would then be used to secure those funds for the future educational needs of a child before they are wasted by the parent. However, this type of situation is rare and would require a good deal of proof.

Despite an obvious prohibition against imposing an educational trust statutory law can confer power upon the Court, the broad discretion to fashion such judgments. For example, G.L. c. 208, sec. 28, provides in relevant part that ‘[u]pon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties….’ Building on sec. 28, G.L. c. 208, sec. 36, provides, in pertinent part: ‘[w]hen … support is adjudged for the … children, the court may require sufficient security for its payment according to the judgment.’ Further, secs. 28 and 36 are not limited in how a Court may use this power in fashioning its provisions. Thus, these sections confer broad discretion to fashion a judgment that will protect the interests and welfare of minor children.

In addition, G.L. c. 208, sec. 12, states “[u]pon an action for divorce by either spouse … the real and personal property of the other spouse may be attached to secure suitable support and maintenance … to such children as may be committed to [a parent's] care and custody.” Also, G.L. c. 208, sec. 34, as amended, requires that Probate Court judges, when making a division of marital property consider “the present and future needs of the dependent children of the marriage.”

Also, case law provides that a Probate Court judge presiding over a divorce proceeding has the authority to enter orders designed to secure a spouse’s duty to provide support or benefits to a minor child of the marriage. The authority to enter such orders as well as what specific form they should take are matters within the judge’s broad discretion to be exercised upon consideration of all relevant circumstances.

For the most part, however, case law prohibits the placement of funds into an educational trust to be set aside for children. By no means is the law well settled about this issue. In order for the trust to succeed its creation it cannot be seen as being an outright assignment of marital assets to children.

As a general principle, besides private agreements made between parties to a divorce, with respect to sharing educational expenses, support orders regarding the future payment of post-high school educational costs are for the most part premature and therefore not valid.

That is because support orders must only address “current needs”. A basic exception for an educational trust to be valid it must involve children with special needs or profligate parents (either children with significant health problems or parents who are irresponsible with their money). Generally, these are the situations warranting an educational trust.

Further, support orders are also generally modifiable. For most cases, there must be material and substantial changes in circumstances of the parties. Support orders can be brought up to date thereby. Interestingly enough, case law provides the need to pay college expenses in and of itself can constitute a change in circumstances warranting modification.

Further, before attempting to modify a divorce decree you should check whether or not one or more terms of the agreement were meant to survive with independent legal significance. If so, something more than a material change must be established, that being “countervailing entities”.

Parties to a separation agreement which anticipate the marriage will be terminated by divorce, may want to agree to permanent resolution of their mutual rights and obligations, including support.

A Probate Court judge may rule, either at the time of entry of the judgment nisi, or at any subsequent time, that the agreement was not a product of fraud or coercion, but is fair and reasonable.

At the time of entry the parties may clearly agree on its finality. As a party to a divorce, in that case, you may actually want the terms of your agreement to survive with independent legal significance. Countervailing equities would then be required to justify further modification.

Countervailing equities could be deterioration of the economic situation of a dependent spouse rendering that spouse unable to meet basic needs. Also, where a judge determines a spouse will become a public charge. If the terms of your agreement are meant to survive then countervailing equities are required and are a very high standard.

However, most divorce decrees contemplate provisions that are incorporated into the judgment of divorce and thus merged. Then you need only show a material and substantial change in circumstances for successful modification.