Child Support and College Expenses in Texas

 Posted on June 04, 2015 in Child Support

With tassels turning on mortarboards throughout Central Texas, this question is a popular one in divorced families throughout the area. While the short answer is "no, unless the child is still in high school or is disabled" there are some nuances in child support law that both parents should be aware of.

The Law

There is some basis for a post-majority support claim to pay for college expenses. Section 154.123(9) allows the judge to consider "the expenses for a son or daughter for education beyond secondary school" when setting the amount. Forward-thinking parents can use this provision to increase the amount of regular support for minor children by a few dollars a month, and require the obligee parent to set those funds aside exclusively for post-secondary expenses.

Recent case law, most notably In Re W.R.E and W.K.B., also upholds this proposition. In that case, the Dallas Court of Appeals made it clear that post-majority support is enforceable in a breach of contract action. As such an order is not enforceable under the Family Code, Judge Molly Francis suggested that the parties include an "or else" clause in the agreement that outlines what could happen if the obligor defaults on that promise.

An arrearage matter follows a similar analysis. 154.123(9) set-aside may be collected through a traditional child support enforcement action, while post-majority support must be separated into a breach of contract case. Earlier this year, the Texas Supreme Court denied certiorari in the case.

Practical Considerations

If you are currently in complex or high-asset divorce proceedings and future college expenses are an issue, it may be a good idea to insert a clause in the decree requiring the parents to divide these expenses on a 50-50 basis. The term "college expenses" should be broadly and specifically defined to include tuition, books, fees, room, and board. The "or else" section may be a liquidated damages clause. If the obligor spouse balks at this proposal, consider offering a 60-40 split or other offsetting considerations.

This same approach can be used in a motion to modify an existing decree in a high net-worth divorce.

For a consultation in this matter, contact an agressive Leander divorce lawyer. Our main office is located on the Capital of Texas Highway.