New Hampshire law changed in a significant way with the institution of RSA 461-A:14 (V) in 2004 which provides: “No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school. “ This statute was interpreted by the New Hampshire Supreme Court in the Goulart case (2009) to mean that a parent could not be required to pay college expenses even in a case where that parent knowingly entered into a negotiated stipulation and specifically agreed to pay college expenses for a child.

The Supreme Court’s interpretation of the law in Goulart left parents in divorce cases with no ability to seek Court assistance to require either of them to pay college expenses for their children, and left them with no ability to make agreements which would be enforceable. Further, it left parents with few remedies for enforcing agreements made regarding payment of college expenses for their children if they were made after 2004.

Having worked with clients who felt payment for college expenses was something extremely important to them, and seeing clients heartbroken as the law in New Hampshire prevented them from even agreeing to payment of college expenses, I understand how important this issue can be for parents who are going through a divorce.

I am happy to inform you that after nearly a decade, the law has finally changed effective August 27, 2013, and parties will from this point forward be able to enter into binding agreements about college expenses. While this change may be helpful to many, it is important to remember that RSA 461-A:14 (V) remains in effect, meaning that absent the parties’ agreement on college expenses, the Court is without authority to Order these payments.

RSA 461-A:21 through 24 outlines the requirements for agreements related to parental contribution to college expenses. There are specific requirements as to what sorts of contributions will be made, who will be making the contribution, whether an asset will be used for payment of college, and it must be specific as to the amount or specify a formula to determine the amount of contribution. RSA 461-A:21. Further, the agreement must state whether it is intended to be modifiable or not modifiable. If the agreement is not modifiable, there must be a specific dollar amount mentioned in the agreement; if it will be modifiable, the test for whether a modification of college expenses is appropriate will be similar to the modification test for alimony: “a substantial change in circumstances that was not foreseeable when the agreement was signed.” RSA 461-A:22. So long as the agreement meets the requirements outlined above, the Court will enforce the agreement. RSA 461-A:23. However, the parties are required to attempt mediation, be it private or court ordered, prior to any hearing to enforce the agreement. RSA 461-A:24.

These new laws allow the parties more freedom in negotiations, mediations, or collaborative law sessions, as they can incorporate the important issue of how the parents will pay for college for their children. This law also will allow divorced parents to return to negotiations provided they both agree to negotiate an amendment to their divorce decree regarding college expenses.

If you have questions about payment of college expenses for your children, or any other questions about Family Law, please contact Attorney Jessica L. Ecker, to set up a consultation.