When are College Expenses Deductible from Support Payments?

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By Law Offices of Sari M. Friedman

Published: July 17, 2004

Is it true that your neighbor is able to deduct college expenses from his/her support payments? Then why can't you make a similar deduction?

Well, maybe you can. And then again, maybe you cannot. It all depends upon your original Separation Agreement. Case Law Is On your Side.

In 1997, the Appellate Division Second Department ruled in Justino v. Justino, 238 A.D. 2d 549, that a father or mother who has been ordered to pay 100% of a child's room, board and tuition while the child is living away at school, could deduct this amount from child support payments during that period.

Nevertheless, many courts refrained from granting this credit despite this case law. Some courts held that the ruling did not apply unless the non-custodial parent was paying 100% of college costs; other courts found varying reasons for denying such a deduction. Later Cases Further Support College Deductions.

Four additional cases^*, the last on September 2000, have produced substantial precedent in the 2nd Department. They have all held that a parent is entitled to pay reduced child support when he or she contributes to a child's college expenses. This is true even when the parent makes a partial contribution. In this case, he or she will receive a credit for amounts contributed toward college expenses.

At this point, it is our belief that the Appellate Division has restated often enough, its position affirming the non-custodial parent's right to take deductions. This should send a clear message to trial courts that the Appellate Division means what it says. Does That Mean You Are Automatically Entitled to Deductions?

Unfortunately, no. It still will depend upon your original agreement. Your agreement is a contract and if that contract provides for support plus college payments until the child is emancipated, then the case law cited here may not help you. If indeed, your contract states it will survive the Judgment of Divorce and cannot be modified, then, in all likelihood, you will not be able to take college expense deductions. On the other hand, if your contract states it merges with the Judgment of Divorce, check with your attorney because you may be able to successfully seek this reduction. Is There A Way to Protect Yourself?

Indeed, there is, especially if you make provisions early on when you are drafting a Separation Agreement or when your case is in litigation. Assert your right to the college credit, regardless of the age of your child.

The cases cited do not provide how much your own support payment may be reduced. Therefore, with the help of your attorney, formulate your strongest argument based on your own personal resources and expenses, as well as the custodial parent's resources and expenses. You will want to explain why you cannot afford to pay both college expenses and support and why this will give an unfair financial benefit to the custodial parent.

If the amount of the college expenses credit cannot be agreed upon at this time, then have a clause inserted stating that the non-custodial parent retains the right to apply to the Court to reduce support for the period of time the child is living away at school, or a clause that awards the non-custodial parent credit for the amount paid for school expenses.

What If There Is No Agreement And The Court Has Set Support? Can you still apply for a deduction?

Yes, you can. And yes, you should!

How?

By citing a change of circumstance.

The Court's Order of Support was set while the child was living at home full time with the custodial parent. Now, the child is living away, incurring additional costs for room, board and education. This constitutes a change in circumstance.

The Order should be modified to (1) reduce support while the child is away at school, or (2) grant credit against support for the school expenses incurred. Speak to Your Attorney

Notify your attorney immediately if you think you may have inadvertently cut yourself off from this remedy. Examine the opportunities you may have to recapture these rights.

Four additional cases: