by Joel A. Abu on Aug. 12, 2017

Divorce & Family Law Divorce 



Before 1976 there was really no basis in Massachusetts statutory law to impose educational costs on a divorced parent after a the age of majority (traditionally 18 years).
However, when M.G.L. ch. 208, sec. 28 was enacted the Court could then allow 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. The statute was again amended raising the upper age limit to 23 years old (see below). That provided 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. 
As there is no real other statutory mandate for a parent to pay for their child’s support in the case of college expenses we must then interpret a parent’s obligation to pay for college.
Pursuant to section 28 an “adult dependent child” is a child between the age of 18 up to 23 years and who 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, 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 the relevant noneconomic factors, such as respective involvement with the child’s care and
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 future college education. The Massachusetts Child Support Guidelines typically deal with “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 it would necessarily involve giving parental property to a child which is not authorized.
As the child support guidelines only allows orders pertaining to “current needs” of minor children 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 the funds are presently available to fund it and both parents have expressed concern for funding future college education. Furthermore, 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.
Section 28 may confer power upon the Court broad discretion to fashion such judgments. For example, section 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….’ Also, section 28 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.’ 
Massachusetts case law provides that the Court 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 as well as what form it should take are matters within the Judge’s discretion. In order for the trust to succeed its creation it cannot be seen as being an outright assignment of marital assets to children and this law is not settled.
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 not valid.
That is because support Orders must only address “current needs”. For an educational trust to be valid it must involve children with special needs or profligate parents (children with significant health problems or parents who are irresponsible with their money). Generally, these are the situations warranting an educational trust.
Support orders are generally modifiable, there must be material and substantial changes in circumstances of the parties. The need to pay college expenses in and of itself could constitute a change in circumstances warranting modification.
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 and if so, something more than a material change must be established (that being “countervailing entities”).
Most decrees contemplate provisions that are incorporated into the judgment of divorce and thus merged, you then you need only show a material and substantial change in circumstances for modification.

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