Carol Ann's Newsletter
Table of Contents
Divorced Parents and Child College Expenses
2. Problems with QDROs
3 Most Common Mistakes Lawyers Make
From the desk of Carol Ann
Paying for college tuition, books, fees and room and board expenses can cause financial hardship for all parents. When parents are divorced or going through the divorce process, paying for college expenses can be a source of major controversy. However, Colorado child support law is clear concerning divorced parents' or
unmarried parents' obligation to contribute to college expenses. The basic rules are:
- The Court cannot order the parents to pay for college expenses if the original child support order was entered on after July 1, 1997 - unless the parties agree in written document (for example a Separation Agreement, a Parenting Plan or Stipulation) filed with the Court after July 1, 1997.
- If a child support obligation was established or modified prior to July 1, 1997, the Court can order the parents to pay for college expenses.
- The Court cannot order a parent to pay for college expenses for a child at the same time as the parent is paying child support for that child.
- The Court cannot order college expenses to be paid after the child reaches age 21.
- A college expense order can be modified by the Court or by mutual agreement of the parents.
- College expenses can include tuition, books and fees. A Court can't order the parties to pay for room and board at college, unless the parents agree.
College is referred to in Colorado child support law as "postsecondary education," and includes college and vocational education programs. Under Colorado law "postsecondary education support" means support for the following expenses associated with attending a college, university, or vocational education program: Tuition, books, and fees.
Child Support Orders Entered Before July 1, 1997
If the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education, then the court shall terminate child support and enter an order requiring both parents to contribute a sum determined to be reasonable for the education expenses of the child, taking into account the resources of each parent and the child.
In determining the amount of each parent's contribution to the costs of a program of postsecondary education for a child, the court shall be limited to an amount not to exceed the basic child support obligations for the number of children receiving postsecondary education. For example, if child support for a the college student would have been $100.00 per month, the college expense order cannot exceed $100.00 per month.
If such an order is entered, the parents shall contribute to the total sum determined by the court in proportion to their adjusted gross incomes. The amount of contribution that each parent is ordered to pay for college expenses shall be subtracted from the amount of each parent's gross income, respectively, prior to calculating the basic child support obligation for any remaining children.
Either parent or the child may file a motion with the court for a college expense order at any time before the child attains the age of twenty-one years. The order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree. The court may order the college expenses to be paid directly to the educational institution, to the child, or in such other fashion as is appropriate to support the education of the child.
A child shall not be considered emancipated solely by reason of living away from home while in postsecondary education (i.e. college, university or vocational school). If the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not in session, the court may order payments from one parent to the other for room and board until the child attains the age of nineteen.
Child Support Orders on or After July 1, 1997
Parents can agree in a written stipulation or agreement on or after July 1, 1997, to continue child support beyond the age of nineteen or to provide for postsecondary education expenses for a child and to set forth the details of the payment of the expenses. If the stipulation or agreement is approved by the court and made part of a decree of dissolution of marriage or legal separation, the terms of the agreement shall be enforced as provided in applicable law concerning separation agreements.
Any court order or stipulation (agreement) to pay for a child's college expenses should be carefully written to include details such as: deadlines for payment; limitations on how much can be spent on tuition; books and fees; terms and conditions for the child to meet (for example, the child needs to attain a "B" average); and how payments are made.
While the Court cannot force the parents to pay for college expenses in cases filed after July 1, 1997, helping to pay for a child's college expenses can still be negotiated so that the child's obligations to pay are reduced or eliminated.
2. Problems with QDROs
We constantly talk about problems with QDROs. Here is a true story of client's problems. Kevin was a participant in a defined benefit plan. He and Melissa got divorced and attempted to divide his benefits from the defined benefit plan through a proposed QDRO. Three attempts at submitting proposed QDROs to the plan were rejected because they failed to meet ERISA's QDRO requirements.
Kevin then married Connie and remained married to her until his death. In absence of a valid QDRO, Connie became entitled to a surviving spouse annuity. When Melissa inquired as to the status of her benefits, she was informed that since there was no QDRO she had no claim to Kevin's annuity. Subsequently, Melissa presented an otherwise valid QDRO which was rejected because it was entered after Kevin's death.
Melissa then sued. However, the court ruled that a surviving spouse vests in favor of the current surviving spouse on the date of the participant's death, and therefore a QDRO entered posthumously is not enforceable.
13 Most Common Mistakes Lawyers Make
- They overcommit, don't manage their time well, and make promises they can't deliver on.
- They aren't fully prepared in the courtroom and don't use expert witnesses appropriately.
- They can misrepresent your position by not knowing certain tax areas that impact you.
- They don't refer their clients to divorce therapists.
- They take on cases in which they don't have full expertise and shoot from the hip.
- They turn a professional, adversarial relationship with their client into a personal battle or a fairly simple procedure into a war zone.
- They don't keep up with technology.
- They bill clients for educating themselves in matters they should know.
- They are horrible communicators, failing to keep their clients informed about the status of their case.
- They wait until the last minute to accomplish routine tasks and miss important filing deadlines.
- They poorly manage their support staffs.
- They fail to design an overall case strategy.
- They don't listen to or respect their clients.
rom the Desk of Carol Ann
This month I would like to address the pro-se client. Pro-se means "without legal representation." It is the divorcing couple that wants to do their own divorce and save money by not hiring lawyers.
It is imperative for you to suggest that they seek legal counsel. Even if each only spends one hour with each of their lawyers, they will hear about their legal rights and if there is a possible legal problem , that will be pointed out to them. You can give your client names of lawyers for them to choose from.
Actual case: Robert and Anne felt they had a very simple situation and they did not want to spend money on a lawyer so they drafted their own agreement, filed it with the court and were divorced "pro-se." After the divorce was final, Anne brought the agreement to me to look over. They had decided that they wanted to divide all their assets in half (they did not own a house) so that is what they put into their agreement. The wording was, "The savings account, mutual fund and 401k will be divided. A QDRO will be prepared." Well, what did that mean? Anne told me she had never received any money from Robert's 401k. I told her she probably never would. Their agreement said nothing about whose 401k it was, who was going to prepare the QDRO, what the QDRO was going to divide or what the purpose of the QDRO was. So she could not hold Robert in contempt because he hadn't really violated the terms of their agreement.
Even though Robert and Anne had come to an agreement about how to divide their property, a lawyer should have been consulted to draw up the legal document. You can use this story to illustrate to clients the importance of consulting a lawyer.
A good marriage develops not only by marrying the right person, but also by being the right partner.
A good marriage is at least 80 percent good luck in finding the right person at the right time. The rest is trust.
Thought for the Day
What lies behind us, and what lies before us are tiny matters, compared with what lies within us.
- Ralph Waldo Emerson