As divorce rates for people older than 50 continue to rise, the impact on late teen and college age children has largely been ignored by lawmakers and courts. Although current research shows that older children are just as negatively impacted by their parents’ divorce as younger children, there are no formal considerations for them in the Minnesota statutes governing divorce.
In Minnesota, the court’s jurisdiction over children ends when they become legal adults. For purposes of enforcing parenting time, children are no longer under the jurisdiction of the family court when they turn 18. For child support, jurisdiction ends when they reach age 18 or graduate from high school, whichever occurs last. While considered emancipated under the law, every parent and family law attorney knows this does not reflect reality. In fact, graduation from high school generally results in an increase in expenses for the college-bound child.
Judges and family lawyers continually see cases where older children of divorcing couples are left unprotected by the law. Many of these children have been raised in families where education has been a priority, and have taken classes and participated in activities designed to prepare them for college. Yet the law makes no financial provisions for these children. The current law does not allow post-high school education expenses to be included in either party’s budget. While the parties can agree to include financial provisions in their divorce decree to pay for college, the court cannot order it. If a family saved for college in accounts not specifically designated for education, such as 529 or Uniform Gift to Minor’s accounts, those accounts are divided between the parents and not allocated for college expenses. At that point, the college-bound child must rely on the generosity and goodwill of a parent in order to obtain funds. Furthermore, if a child has graduated from high school but still resides at home full-time or in the summer while attending college, those expenses are also excluded from a parent’s budget.
One might ask how the divorce changes things for these children. If the parents had not divorced, wouldn’t the children be in the same situation? To answer that question, we must acknowledge how divorce can negatively impact children. One of the sacred precepts of the psychological and family law community is “keep the children out of the middle.” Research shows that while some parents can do this, many cannot. While parents generally to try to shield younger children from the problems of their divorce, often they seek comfort and companionship from their older children, share the reasons for the divorce, and discuss the financial ramifications to the family. There is often subtle or overt pressure on the older children to take sides. The circumstances contributing to the divorce, such as domestic violence, drug dependency, and extramarital affairs, may cause children to side with one parent or the other.
It is not uncommon for the parent who controls the money to use that as leverage to get a child to side with him or her. In the case of younger children, the court can address those issues by ordering counseling or reunification therapy and issuing a restraining order to prevent the parents from discussing the divorce with a child. Child support can be put in place so that both parents are on an equal financial footing when supporting their children. But once the child becomes a legal adult all those protections stop. Yesterday’s “child”’ is now an adult, capable of taking care of him or herself, even though we all know that is a legal fiction. The day aft er graduation, the 18-year-old doesn’t move out of the home and she still needs food, clothing, shelter, transportation and medical care. If the child is attending college, classes will likely not begin until mid-to-late August. Then school breaks and summers usually result in the child’s move back to one of the parent’s homes. Who is obligated to provide financial support for these children? Unfortunately, an ethical or moral obligation to care for one’s child doesn’t create a legal one.
It is my experience the mother is oft en expected to defray these costs, and yet financially, she is the least qualified to do so. Many mothers have not worked outside the home during the marriage as they focused on homemaking and parenting. Even if they do return to the workforce aft er the divorce, their wages are oft en modest. Spousal maintenance awards for these women are based upon that elusive phrase “the marital standard of living,” which unfortunately does not allow for the consideration of the college-bound child’s educational or living expenses. If she is lucky, the mother will receive enough spousal support to get by, but there will likely be no room for the expenses of the college-bound child. Oft en, the only option is for these parents to liquidate assets or withdraw from their retirement assets to pay these expenses for their children, something they can ill afford to do.
Sometimes the primary breadwinner during the marriage, usually the husband, substantially contributes toward college tuition and other living expenses for the child. However, when considering his ability to pay spousal maintenance for the dependent spouse, the court will not allow him to include these expenses in his budget.
Where does that leave the child? This is an important issue for family lawyers and the legislature to consider so that these forgotten children of divorce can be protected. Kathleen M. Newman
