Do Parents Have to Pay for College in Pennsylvania?

You have probably heard about Rachel Canning, the New Jersey teenager who sued her parents to pay for her tuition for private school and college after moving out of their home. At the time she sued her parents, Ms. Canning was 18 years old – an adult – making the case especially surprising to most parents. Ms. Canning lost the first round of her lawsuit when a judge declined to order her parents to pay child support and for her private school tuition. Most likely because Ms. Canning “voluntarily” left her parents’ residence. The judge was also probably reacting in part to the widespread negative media coverage. Ms. Canning since withdrew her claim for college tuition and reconciled with her parents.

When the story broke, comments about Ms. Canning on social media called her “spoiled” and “over entitled.” But, were her claims truly that outrageous or unusual? Not really. Courts in New Jersey routinely order divorced parents to pay for their children’s private school tuition and college education. The leading case is Newburgh v. Arrigo, 88 N.J. 529 (1982), in which the New Jersey Supreme Court held that a parent’s duty to provide an education for their children includes a college education, making New Jersey probably the most draconian state when it comes to child support.

Ms. Canning’s case was somewhat unusual because her parents were not divorced or separated. However, legally they still owed Ms. Canning a duty of support and had the judge found that she left her home for good reasons, then he would have been well within the law had he ordered her parents to pay for her private school and college. Therefore, the answer the questions posed above is “yes” — if you or your child lives in New Jersey.

In contrast to New Jersey, courts in Pennsylvania cannot force parents to pay for their children’s college education.

Courts in Pennsylvania used to be able to order divorced, separated or unmarried parents to pay college education under Pennsylvania’s Act 62, 23 Pa. C.S. § 4327. That changed in 1995, when the Pennsylvania Supreme Court declared Act 62 unconstitutional, as a violation of equal protection, because it did not impose an equal obligation on married parents. Pennsylvania courts, however, routinely require separated, divorced or unmarried parents to pay for private school tuition for emancipated children (i.e. children still in high school or under 18 years old) if the parents had previously voluntarily enrolled the child in private school.

The imposition of college cost on parents can obviously have a significant financial impact on them. While most parents want to help their children with college expenses, not all are able to do so. Having a court unilaterally impose those costs can create a significant hardship. Thus, we advise our clients to avoid being subject to New Jersey law if at all possible. In one case, I advised a Pennsylvania client whose wife moved to New Jersey with his child after separation to preemptively file for child support in Pennsylvania, even though he would be the party paying support. The client worked in New Jersey and could have been served with legal papers while working in New Jersey, potentially subjecting him to New Jersey’s support laws.


How Bucks County Child Support May Affect Your Divorce

Most divorces involve couples with children. Virtually all of these divorces will be impacted by child support issues. If you are divorcing in Bucks County, PA, it is important to have a general understanding of how child support works, how it is decided, and the factors that will influence it to your advantage or disadvantage. Below are the top 11 ways that Bucks County Child Support may affect your divorce:

1. In general, the party who has the most overnights with the children will be entitled to child support.

In Pennsylvania, the party that pays child support and the party that receives child support depend on the physical custody schedule of the children. The party that has primary physical custody of a child (meaning he or she has over 50% of the overnights with the child) will be entitled to receive child support from the other party, irrespective of the parties’ relative incomes. However, if the parties share physical custody of a child equally, then the party earning less money (or with a lower earning capacity) will be entitled to receive child support.

2. Child support in Pennsylvania is based a formula.

Absent extraordinary circumstances, child support in Pennsylvania is calculated based on a statutory formula. That formula is primarily affected by four factors. Those four factors are (i) the overnight custodial schedule, (ii) the number of children covered by the child support order, (iii) the monthly after-tax incomes or earning capacities of the parties, and (iv) certain additional expenses related to the children, including health insurance and mortgage payments. Most disputes over child support involve the parties’ earnings or earning capacities.

3. The Pennsylvania child support formula frequently causes custody disputes.

Because the child support formula is based partly on custodial overnights, the support law indirectly causes custody disputes, which affects the divorce process. Parents will frequently fight for more custodial time simply to obtain a reduction in child support. For example, if a parent has five overnights out of every two weeks (about 35% of the time with the children), that parent will have to pay child support and will get no discount. However, if that same parent has six overnights out of every two weeks (about 43% of the time), they will get a discount on child support.

For that reason, parents will frequently fight vehemently over a single overnight simply to save on child support. Similarly, parents will fight over primary custody simply to receive or avoid child support.

4. Expect to spend a lot of time and money fighting over child support.

Nothing seems to cause as much angst having to pay an ex-spouse money. Combine that with the fact that many of the factors used in the formula are variable (for example, what someone’s earning capacity should be), that people frequently change jobs, that incomes change, and that custody schedules change, and you have a recipe for frequent litigation. Most people involved in child support cases are back in court every one to two years, fighting for support modifications. It can consume a lot of time and money.

5. You will feel that you are either paying too much child support or getting too little child support.

Once a child support number is established, the payor inevitably feels he or she is paying too much. The payee inevitably feels he or she is receiving too little. Everyone is unhappy. Divorce takes its toll on all involved, and raising children outside of a two-income household can have serious financial effects.

6. You will still have to pay for “extras”.

Support rarely covers all the costs for raising a child. Even after a child support number is established, you will have to pay for “extras.” By that we mean costs associated with sports, clothing, dance classes, summer camp, Halloween costumes, birthday parties, vacations – costs that do not necessarily occur to parents while they are sitting in court. Sometimes the parent who is receiving support believes the other parent should contribute to these expenses, in addition to the support. Other times, it’s the parent who is paying child support who thinks the recipient of child support should have to pay for everything out of the support sum.

Bottom line? If you want something for your child, you are probably going to have to pay for it yourself, unless you can come to an agreement with your ex-spouse. If you cannot, these extra costs will have to be factored into your budget.

7. Child support can make your divorce seem never-ending.

Life is full of events that can affect your child support. There are changes in employment, changes in custodial schedules as the kids age, changes in the needs of children. The result is that child support ends up being a never-ending battle. In Pennsylvania, child support is always modifiable. That means your ex-spouse can take you back to court on a whim just to rehash this issue. The court will even write to you every three years to suggest that a modification of child support may be warranted. This means that you are likely to face continuous litigation even if your divorce is otherwise “final.”

One factor that makes support final is “emancipation.” That is when a child ages out of the support system, usually when he or she turns 18 or graduates from high school, whichever occurs later. Still, support will be owed for each of the children not yet emancipated.

8. Child support cannot be waived, which can affect any divorce settlement you reach with your spouse.

People going through divorce will often ask if they can avoid paying their spouse child support, or at least if the amount can be fixed. Couples will attempt to include provisions in their marital property settlement agreement either waiving child support or fixing it at a certain level. There are almost always trade-offs for such provisions. Often, the custodial parent will receive more cash or property up-front as part of this arrangement.

Under Pennsylvania law, however, agreements to waive or fix child support are unenforceable. The result is that agreements not to seek child support prove to be worthless. It is essential to negotiate your marital settlement agreement with this in mind, and avoid trading off benefits you will otherwise not be able to reclaim for child support provisions that could be disputed at any time.

9. Child support affects alimony calculations.

If there is a child support order in a divorce, the amount of support payable will affect the amount of alimony payable. As a result, changes in child support affect the amount of alimony payable. And, as stated above, the amount of child support payable frequently changes over time. As a result, the interrelationship of child support and alimony, and the expected duration of the support orders, needs to be carefully considered when negotiating a marital settlement agreement.

10. The person receiving child support may receive more property in equitable distribution.

One of the factors in dividing marital property in Pennsylvania is whether one party will be serving as the custodian of minor children. Because, practically speaking, this will be the same person as the party receiving child support, the result is that the party receiving child support will also likely be awarded more of the marital estate. The theory behind this is that the person raising the couple’s minor children for most of the time will likely need additional resources to support those children.

11. You should considering including a provision for the payment of college tuition and expenses in your property settlement agreement.

Child support in other states, like New Jersey, can include an obligation to pay for children’s college tuition and expenses. There is no such obligation in Pennsylvania (for a list of states and their respective laws follow this link). Therefore, if you want your spouse legally “on the hook” for some portion of your children’s college tuition, you will need to include such a provision in your martial settlement agreement.

However, I always advise my clients against agreeing to any such provision, because it is impossible to predict what their situation will be when it is time to pay for tuition. They may be out of a job, estranged from their child, or faced with other circumstances that, in retrospect, would make such an agreement unwise or unwarranted. This is not to say that parents shouldn’t help their children with college expenses. It’s just not prudent to agree to do so in advance.


Who is Responsible for Maintaining Health Insurance Coverage in Divorce and Child Support Cases in Pennsylvania?

Pennsylvania law provides rules that govern who is responsible for maintaining health insurance coverage in divorces and in child support matters. The law also provides the court with guidance regarding how to allocate the cost of such insurance between the parties.

Who is Responsible for Maintaining Health Insurance Coverage?

In child support cases, where family health insurance is available to one or both parties through employment, the court will require one party to provide insurance for the children. If such insurance is only available to one party through their employment, that party will be the one required to provide the insurance. If health insurance is available to both parties, then the court will look at a variety of factors to determine who should be responsible for providing the coverage. These include who currently provides insurance for the children, the benefits available under each plan, and the additional costs to insure the children under each plan.

In child support actions where medical coverage is not available through either party’s employer, the court may require the primary custodial parent to apply for government-sponsored coverage, such as Pennsylvania’s Children’s Health Insurance Program (“CHIP”). In divorce cases (and spousal support actions) if health insurance is not available to one of the parties through his or her employment, or if the insurance offered is sub-standard, and family health care coverage is available to the other party at no cost or a reasonable cost as a benefit of employment, then the court will require that party to extend health care coverage to the other spouse.

How is the Cost of the Premium Allocated?

The cost for maintaining health insurance coverage for the parties and their children, as applicable, is generally allocated between the parties in proportion to their respective net incomes. That amount is then factored into the overall support order. For example, if a husband is providing family health insurance coverage for himself, his wife and children at a monthly cost of $500.00 and husband earns 60% of the parties’ net monthly income and wife earns 40% of the parties’ monthly net income, then Wife will be responsible for contributing $200 per month towards the insurance. Wife’s contribution to the insurance would be offset against any child and spousal support or alimony pendente lite that husband owes to wife.

Unreimbursed Medical Expenses

In addition to requiring a party to provide health insurance for a spouse and/or children, and allocating the monthly cost of the health insurance premiums as set forth above, the court will also generally require the payor-spouse/parent (the party owing spousal or child support) to pay a percentage of the other spouse’s and/or children’s unreimbursed medical expenses in excess of $250.00 per person per year. Co-pays for office visits and prescriptions are examples of such out-of-pocket expenses. The payee (the party receiving support) is required to pay for the first $250.00 in unreimbursed medical expenses per person covered by the support order. After reaching the $250.00 threshold amount, the parties normally split the unreimbursed medical expenses in proportion to their net incomes. That amount is paid outside of the support order and any reimbursement will be a direct payment from one party to the other.

Can I Remove my Spouse from my Current Health Insurance Plan While Divorce is Pending?

Although it depends on the circumstances of your case, the short answer is probably no. Under Pennsylvania support law, the court may require that a payor-spouse pay a designated percentage of the payee-spouse’s reasonable and necessary health care expenses. If health care coverage is available at no cost as a benefit of employment or at a reasonable cost to one party, the court will order that party to extend health care coverage to the other spouse.

For the majority of cases, that means that the coverage that was in place at the time of separation must be maintained while the divorce is pending. If you remove your spouse from your employer-sponsored health insurance plan that you receive at no cost or at a reasonable cost, you can be ordered to reinstate the cancelled coverage and could be held responsible for medical expenses incurred by the payee-spouse as a result of the gap in coverage.

When does the Obligation to Provide Health Insurance Coverage End?

Generally, the obligation to provide health insurance coverage for children ends when they turn 18 or graduate from high school, whichever is later. The obligation to provide health insurance coverage for a spouse ends upon entry of a divorce decree, absent agreement otherwise. However, in both cases, the obligation may end sooner if insurance is no longer available through employment at a reasonable cost.


I am a Woman: Do I Have to Pay Alimony or Child Support?

One morning not long ago, when I was dropping my son off late at pre-school, all of his classmates were already in circle time talking about the day’s weather. As my son joined the circle, I overheard his teacher gently reminding the class that their “mommies” must return permission slips for the library field trip. My heart dropped a bit as I thought of my son’s best friend, sitting there in the circle. Unlike the majority of the children in class, this boy’s father is the parent who has taken on the responsibility of signing permission slips, packing lunches and, yes, doing laundry and making dinner. His wife happens to be a very successful businesswoman – climbing the corporate ladder early on and proving to be a formidable force in her line of work. Because his career was not as lucrative, they made the decision early on that he would be the parent to stay home and care for their two young children. This scenario is becoming increasingly common, leading many women to ask, do I have to pay alimony or child support?

For years women have attempted to achieve equal status to men in the work place, as well as in the home, shattering traditional gender stereotypes and achieving greater equality. Like my son’s friend’s dad, more fathers are finding themselves assuming what were once stereotypical female familial roles. Although these traditional roles are changing, overall divorce rates have remained fairly consistent over the last decade, purportedly ranging between 46 and 53 percent. This has proven to have unexpected consequences for the higher-earning female spouse.

Indeed, more women are finding themselves responsible for monetary support during and after divorce.

According to a recent survey of the American Academy of Matrimonial Lawyers, 56% of the nation’s top divorce attorneys say that they have seen an increase in the number of mothers paying child support during the past three years.   Forty-seven percent of those attorneys also note a rise in women being responsible for alimony throughout the same time period. Ken Alshuler, president of the American Academy of Matrimonial Lawyers believes that “the court system is generally a reflection of societal changes and that this is no exception.” He explained “as more women achieve success in their career paths, they are also finding themselves increasingly responsible for financial obligations during and after the divorce process.”

As has long been the case with divorcing men, many women who now find themselves responsible for spousal support, alimony and/or child support payments are frustrated at the prospect of making these payments to an ex-spouse. It is important that women contemplating divorce understand Pennsylvania spousal support, alimony and child support laws and how they may financially impact them upon divorce.

Pennsylvania spousal support, alimony and child support laws simply do not discriminate between women and men.

Instead, our courts are obligated to analyze various factors when determining who will pay support. Generally, the greater income-producing spouse will end up making the spousal support, alimony and/or child support payments having nothing to do with whether the spouse is a man or a woman.