College Expenses...Whoa now!

Here's an article that I recently wrote for the Legal Staff Professionals of Greenville (LSPG) monthly newsletter.

It’s that time of year again – school is back in session.  These days college seems to be automatic for most high school graduates.  The process begins early in high school preparing for entrance exams and completing applications, and with state support for colleges decreasing, the prices for those incoming freshmen, and their parents, continue to rise.  College expenses are hard on married couples, but at least the child support laws allow divorced parents can get help from their former-spouses for college expenses, right?South Carolina Code §63-3-530(A)(17) states that the Family Court has jurisdiction to make orders for child support to run until the child turns eighteen (or until the child graduates from high school), becomes married or self-supporting.  The statute goes on to allow a court order for child support past the age of eighteen when there is a specific agreement, when there are physical or mental disabilities of the child or in “other exceptional circumstances that warrant the continuation of child support beyond age eighteen.”In 1979, the South Carolina Supreme Court decided Rinsinger v. Rinsinger, 273 S.C. 36, which a child support order to continue past age eighteen because of college expenses incurred by the child and in part due to the parent’s ability to pay.  It is important to note that this child support could only be continued from a previous order and not a new petition filed for child support.  In this decision, the Court considered a child wanting to go to college as an “exceptional circumstance” provided they showed the aptitude for doing well, desired to attend college, and the parent’s had the financial ability to pay for college.This would seem to be a nice bonus to be able to offer our divorce and child support clients.  But, everything changed this year.On April 19, 2010, the South Carolina Supreme Court ruled in Webb v. Sowell, 387 S.C. 328, that treating supporting parents in to different ways (those with a previous child support order and those without a previous support order) failed the rational basis test and violated the Equal Protection Clause of the United States Constitution.  The current court position on this topic is that neither parent has a common law duty to provide for the post-secondary educational expenses of their children and that the statute should not allow the court to continue a previous support order beyond age eighteen for one supporting parent when they could not institute a new support order after age eighteen for another supporting parent.  Because it treats two different “classes” of people differently, the statute is unconstitutional.Based on the decision in Webb, it appears that a court will no longer consider college expenses to be an “exceptional circumstance” that allows them to continue child support and the only way to attempt to have a former-spouse assist with college expenses would be to include a very specific provision regarding college expenses in a separation agreement during the initial divorce/custody litigation.