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The infamous ‘SUNY’ cap...

September 2017 | Alison Leigh Epsilone, Esq.
Why is it that divorced/separated parents are required to contribute to their children’s college education when married parents do not have to do the same? Through the years of developing case law in the matrimonial/family law field, it seems as though divorcing parents, their attorneys and the courts have forgotten that parents are NOT legally obligated to pay for their child’s college education.
The general rule, though, seems to be that the determination of contribution to college is “dependent upon the exercise of the court’s discretion” and “based upon the circumstances of the case and of the respective parties.”

When negotiating a settlement, attorneys are quick to include provisions requiring the parties to each contribute to college expenses (i.e. “in proportion to his/her respective gross taxable incomes for the calendar year that immediately precedes the commencement of the school year in question”).

And there is also an important provision where the parties limit their financial obligation to the amounts charged by a SUNY school (the infamous “SUNY cap”). However, what was failed to be considered with this provision was the actual cost of a SUNY college education.

Many of my clients focus on how much their exes (or soon to be exes) are required to pay for college, but fail to realize they too are also entering into an agreement where they are bound to contribute to college.

As an aside, it should be noted that if the parents do indeed enter an agreement (or there is a Court Order) requiring contribution to college education, and you cannot pay thereafter, you may be subject to judicial enforcement remedies. Such enforcement remedies include contempt, which could possibly lead to incarceration in prison.

My purpose in writing this article is not to incite fear, but to demonstrate the need for all involved in a divorce/family court proceeding to think practically. I have already started to counsel my current clients and suggest that the parties agree to pay a certain dollar amount, if anything, each year for college (i.e. $2,500 per year) as opposed to splitting the cost of college “pro-rata” or “equally.”

In 1995, the New York Times estimated the cost of a SUNY college public education (including tuition, room and board) to be approximately $10,000 per year. Therefore, it may have been affordable for those couples divorcing in the early 90s to agree to contribute to their children’s college.

However, for the 2017-2018 school year, the estimated SUNY Stony Brook costs (including room/board/fees) are approximately $25,000 per year – an increase of 153 percent! If this trend continues, the annual cost of a SUNY school could be close to $65,000 20 years into the future.

While there is proposed legislation in New York State with regards to “free” SUNY tuition, the future of this legislation is currently unknown. Moreover, the current proposed legislation includes income thresholds, but does not include whether these thresholds apply to combined parental income (regardless of whether they reside in the same or separate households).

I inquire with my clients as to what they discussed with their spouses when they were still an intact family in regards to the payment of their child(ren)’s education. Many of these clients tell me that it was never discussed, their child(ren) would take out loans or they (the parents) would do “whatever they could to help.”

A small minority of my clients have college savings accounts and/or a plan for the payment of college. The commonality amongst 95 percent of my clients, however, is that they simply cannot afford it – especially now that they are no longer a two-income household.

Therefore, I would urge all separated/divorced parents to consider the above when entering into agreements for the payment of college and/or prior to seeking the court’s assistance in obligating a parent to pay for college. And remember that the obligations for college will apply to both parents, not just one.

If you have any questions about this topic, feel free to contact me at 631-231-1450, ext. 205.

Sources: Collins v. Collins, 222 A.D.2d 584; Fiore v. Fiore, 2017 WL 2347002; www.stonybrook.edu; www.nytimes.com