Bar News - August 23, 2013
NEW LAWS: what you need to know: Legislation Allows Agreements on College Contributions
By: Honey Hastings
Effective Aug. 27, a family court judge may approve and enforce a college contribution agreement between a child’s divorcing parents.
Proposed Text for Agreement
Honey Hastings, author of the bill on agreements for contributions to college for divorcing parents, which has been signed into law and takes effect Aug. 27, supplied the following suggested text for family law attorneys.
on College Expenses
The parties agree to contributions to college or other educational expenses beyond the completion of high school in the following manner: Type of contribution (check all that apply):
Contributions to an account by petitioner/ respondent/ both parents:
(Include specifics as to amount, frequency, and the account)
Use of an asset: (Specify the account or other asset and its current balance or value):
Payments as expenses are incurred by petitioner/ respondent/ both parents. Specify amount, percentage, or formula):
Select one of the following:
This agreement is modifiable based on a substantial change in circumstances that was not foreseeable when the agreement was signed.
This agreement is NOT modifiable. If this option is checked, the agreement must state a specific dollar amount to be contributed by either or both parents.
Note: Before any court hearing to modify or enforce the agreement described above, the parties shall participate in mediation.
New legislation passed during the 2013 legislative session continues the statutory prohibition on a court requiring contributions to college, while allowing enforceable agreements to do so.
New Hampshire’s parenting statute (RSA 461-A) encourages parents to resolve issues concerning their children. Specifically, it says that it is the policy of this state for parents to have the widest discretion in developing plans for their children.
However, another section of the parenting statute prohibits any agreement as to college expenses. This provision took effect in 2004; before that, contributions to college were permitted, either by agreement or by court divorce decree.
The new law includes six specific requirements: 1) Any agreement on college expenses must be signed by the parents and 2) approved by the court; 3) the agreement may require one or both parents to contribute; 4) the contributions to college expenses may be made in any of three ways: Account to save for college, use of an asset, and payment of college expenses as incurred; 5) the agreement must specify whether it is modifiable, and 6) before any litigation about a college contribution agreement, the parents must go to mediation. (See sidebar for sample pleading text that meets these requirements.)
I asked Circuit Court Administrator Brigette Siff Holmes how the court will be handling the college agreement legislation. She said, “We are reviewing this and other legislation going into effect in this same timeframe to determine what form changes or process changes need to be made. All necessary changes will be made by the effective date, and all form changes will be posted on the court website on the effective date.”
A grey area before 2004 was whether an agreement to contribute to college was modifiable. The legislation requires that the parties choose one or the other. While most parents would likely designate it as modifiable (like child support), others would not (like asset division). The latter choice would be appropriate when the college contribution was traded for rights to an asset.
About 90 percent of divorces are resolved by the parties, through mediation or otherwise. Many parents agreeing on the terms of their divorce wish to include a provision on contributions to college. Since February 2004, if such a college provision was included in an agreement, either the court deleted it or specifically excluded it in the ensuing order.
Other pieces of family law legislation passed this year include Chapter 249 about CHINS, Chapter 201 ending support orders for disabled children at age 21, and Chapter 81 resolving issues about “medical support obligation” from Regan (July 2012).
For the text of these bills visit gencourt.state.nh.us.