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Including College Expenses in a NC Separation Agreement

By S. Dean Michaux, JD

When parties begin the process of divorce, many people feel that that they should include college expenses in a separation agreement. One or both spouses want to ensure that the college expenses for their minor children are covered when the children reach that milestone. But should you agree to cover college expenses in your separation agreement?

Some states like Illinois require parents that are not married, and even the estate of a deceased parent, to cover educational expenses for a non-minor child. Section 513 of the Illinois Domestic Relations Law grants Illinois courts the authority to order parents to pay for college expenses including, college application costs and entrance testing fees until the child reaches 23, and in some instances up to 25.

North Carolina General Statute § 50-13.8 states that a parent’s legal obligation to support their child ceases when the child reaches the age of 18, unless the child is insolvent, unmarried, and physically or mentally incapable of earning a livelihood. The North Carolina Court of Appeals held in Shaffner v. Shaffner, 244 S.E.2d 444, 446 (N.C. App. 1978), that “a parent can by contract assume an obligation to his child greater than the law otherwise imposes, and by contract bind himself to support his child after emancipation and past majority.”

Separation agreements incorporated into a consent judgment bind the parties to the terms of the agreement, and the parties are subject to contempt powers of the court. The court interprets the consent judgment in the same manner as a contract to determine the intent of the parties. When the language of the contract is clear and unambiguous, the court may not add, remove, or ignore terms of the writing and must construe the contract as written. Quinn v. Quinn, 723 S.E.2d 173, (N.C. App. 2012) (quoting Martin v. Martin, 216 S.E.2d 456, 457-58 (N.C. App. 1975)). The court must examine the entire agreement “. . . with an understanding of the result to be accomplished and the situation of the parties at the time the contract is made.” (Id. At 173). The court will read the language of the agreement based on the plain meaning of the words used in the agreement. If the language of the agreement says merely “college expenses,” the court may interpret that to include any or all expenses related to the child acquiring that education.

If you and your partner decide to enter into a separation agreement, be mindful of clauses that can extend your obligation to pay expenses beyond your legal requirement. By entering a clause that extends your support obligation, a parent loses the ability to give input or object to issues they feel could be harmful or detrimental to their children. A parent could also be required to pay for college for a child that no longer has any relationship or connection to that parent.

If the parent decides they still want to include a higher education clause in a separation agreement, consider the following:

· placing precise language in the separation agreement permitting the paying parent to be involved in decision making,

· limits the amounts or specifies what the parent will be responsible for paying, and

· any other specific language appropriate for your case.

Entering an agreement with the other parent when a minor child is ten or more years from reaching the age of maturity is like giving that child a blank check that the paying parent has little to no control of when it comes to choosing a school.