Section Review

Nicole Barrasso

An ounce of prevention is worth a pound of cure, so they say, and when it comes to child support and college expenses in Massachusetts, it might be worth quite a bit more. This article analyzes, and suggests solutions to, the unfair paradigm the Massachusetts Child Support Guidelines (“Guidelines”) and M.G.L. c. 208, s. 28 establish with regard to child support and college expenses. As it stands, a parent who is contributing toward a child’s college expenses is required to continue paying child support even after the child matriculates at college and ceases to reside at home for nine or more months out of the year.

M.G.L. c. 208, s. 28 empowers, but does not require, a court to make “appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance.” A court also may make such orders for a child aged 21 to 23, so long as the child is enrolled in an educational program (other than a postgraduate program). “Domicile” can have a particular legal meaning. For example, Black’s Law Dictionary defines domicile as a “legal” and “permanent” home to which a person intends to return, even if the person actually resides elsewhere (see BLACK'S LAW DICTIONARY (6^th ed. 1991)), and this definition is commonly used in cases about jurisdiction. However, in other circumstances, domicile can be equated with residence. See, e.g., Shepard v. Finance Assoc. of Auburn Inc., 366 Mass. 182, 190 (1974).

The Guidelines hint at a recognition that child support for a child over age 18 who no longer lives at home is not appropriate. First, the Guidelines recite that the court has statutory discretion “to order or decline to order” such support, and state that in making a decision on the question, the court “shall consider the reason for the child’s continued residence with and principal dependence on the recipient, the child’s academic circumstances, the child’s living situation, the available resources of the parents, and each parent’s contribution to the costs of post-secondary education for the child and/or other children of the family … [and] any other relevant factors.” See C.S.G. Section 2 (F), pars. 1 and 3 (emphasis added). It is notable that the Guidelines Task Force (“Task Force”) apparently chose to equate the “domicile” requirement of M.G.L. c. 208, § 28 with residency. Given this choice, as well as requiring principal dependence on the recipient, the Task Force perhaps sought to prevent the inequity of a court ordering a parent to pay child support to the other while also paying room and board for the child who no longer lives with the recipient nine or more months out of the calendar year.

The problem is that in real-world practice, the operating assumption among many practitioners and courts is that child support continues even when the offspring heads away to college, even though under M.G.L. c. 208, § 28, for a child support order to be proper, said child must be “principally dependent” upon the recipient parent for maintenance. Rarely, it seems, is there a meaningful analysis as to whether there is, in fact, the requisite “continued residence with” and “principal dependence on” the recipient. Larson v. Larson, 28 Mass. App. Ct. 338, 341–42 (1990), sets forth a multi-factor analysis for “principal dependence,” and makes it clear that financial support alone is not the benchmark. However, Larson is over 30 years old: shared physical custody is more common today, and it is also more common that both parents provide many forms of the sort of non-financial support identified as factors in Larson. This reality is rarely considered, if at all.

Too often, payors find themselves stuck in the unfortunate circumstance of continuing to pay a substantial amount of child support as well as a substantial amount, if not all, of a child’s college expenses (including room and board), with modification actions providing slow, untimely, expensive and unsatisfactory relief. College acceptance letters go out in April, with deposits due in June: the wheels of justice simply do not turn quickly enough to offer any real relief to the payor.

While the Task Force did reduce the amount of child support for children over 18 by 25%, its logic with respect to children who are away at college is problematic and, overall, the Guidelines simply do not go far enough in addressing the problem at hand. Per the Commentary to Section 2 (F), third par., the Task Force’s rationale behind the reduction for children who are still living at home but not enrolled in college is sensible: those adults would be working and thus contributing to household expenses. With respect to children who are in college, the Task Force wrote, “the child may be living away at school thereby reducing some of the household expenses.” The crux of the problem here is that there is a financial world of difference between children who live away at college and those who continue to live at home during college. Further, as demonstrated below, the painfully minimal reduction in support bears no relationship to reality.

The mathematical analysis of how support changes when a child is added to a family, or turns 18, reflects how arbitrary the calculations can be. Assume that the payor parent earns $100,000 per year, the recipient earns $50,000 per year, and the recipient has two-thirds of the parenting time (for the sake of simplicity, this example does not factor in a health insurance expense). If those parents have only one child under 18, the support order under the Guidelines would be $366; once that child turns 18, the order drops by $92 per week to $274. If that child is living away at  college nine months out of the year, does the recipient really need $274 per week ($14,248 per year) to care for the child?

If that same family has two children under 18, the support order would be $458 per week (an increase of $92 over the family with only one child under 18). When the eldest child in that two-child family turns 18, the support drops by only $23 to $435 per week. If the eldest child is living away at college, why does the payor get a break of only $23 per week, especially since the Guidelines presume the need increases by $92 when a second child is added to the family, and there is a $92 reduction when the child in the one-child family turns 18?

The math becomes more challenging when one factors in college expenses. Assume that the eldest child of the two-child family attends UMass at Amherst and the parties’ separation agreement obligates each parent to contribute one-third of educational expenses (a fairly common default in separation agreements). Currently, the annual expenses for UMass at Amherst are almost $30,000: this translates to each parent owing $10,000, i.e., a weekly expense of $192. If the payor was lucky enough to have a successful modification to reduce the weekly child support order to the presumptive $435, the payor will now be paying out $627 per week, almost one-third of the payor’s gross income. Under this scenario, the payor is essentially subsidizing the recipient’s share of college expenses.

As noted, the Task Force may have recognized there is a problem with regard to ordering child support when the child has gone off to college. The commentary notes that between 1976 and 2017, expenses for public and private four-year schools increased 250%. Per a Dec. 17, 2020, Massachusetts Continuing Legal Education (MCLE) panel titled “Reoccurring Issues with Child Support and College,” the Task Force recognized that a “one size fits all approach” would not be appropriate and sought to encourage deviations and flexibility. The commentary to the principles underscores this intention: “The Task Force included Principle 5 regarding deviation to highlight that, where appropriate, the Court should deviate from the presumptive child support order amount … The Task Force acknowledged the sentiments expressed by attorneys and litigants that there may be hesitation by the Court to deviate from the presumptive child support order.”

The practical problem, as Judge Edward F. Donnelly Jr. noted in the aforementioned MCLE program, is that deviations, in practice, are rare, and there is no clear guidance in the Guidelines as to what happens at the intersection of child support and college. For example, paragraph 4 of Section 2 (G) mandates that a court, which is exercising its discretion to order support for a child over age 18 and contribution to the child’s postsecondary educational expenses, “consider the combined amount” of both orders: but what exactly does this mean? How is a court to “consider the combined amount” of such orders?

Most, if not all, practitioners wish they had a dollar every time a client said that he or she would gladly pay money directly toward a child’s benefit (e.g., college) rather than pay child support to the recipient. Whether justified or not, there is a psychological cost for payors whose child support obligation does not change, or changes only minimally, upon a child’s attaining age 18 and departure for college. Until the Guidelines change, a forward-looking approach when drafting separation agreements should be employed to protect a payor client’s finances, and overall sense that some fairness has been done, when children turn 18 and head off to college. Simply telling a client that he or she can file a modification action when the time comes does a disservice to the client. Even if modification actions resulted in meaningful financial relief (a dubious proposition given that deviations are, in practice, viewed as rare and extraordinary), no relief will be timely. Further, any gains achieved in litigation may well be outweighed by the associated costs.

A drafter of a separation agreement must consider and address directly the college expense/child support conundrum. Of course, given the ingrained practice that child support presumptively will continue (with minimal or no reduction) after a child heads off to college, one will have to offer a carrot to the recipient. Creativity may be required. An agreement that automatically reduces or terminates child support upon a child’s matriculation at college, but that also provides for the payor to take on a greater share of college expenses in lieu of child support, may strike a balance that both parties can tolerate. The agreement might perhaps also provide for child support to resume during any time the child resumes living with the recipient (e.g., winter or summer breaks) and, in so doing, account for the reality that many college students do not strictly adhere to a parenting plan and instead come and go from both parents’ homes as they please. At a minimum, an agreement should contain triggers for automatic review that align with upcoming life changes (e.g., at the beginning of the child’s senior year of high school when the college application process begins) as well as an alternative dispute resolution clause to avoid the expensive and inefficient modification process.

Child support is supposed to be, at least somewhat, rooted in genuine need. See Macri v. Macri, 96 Mass. App. Ct. 362, 368 (2019), citing Brooks v. Piela, 61 Mass. App. Ct. 731, 737 (2004). Until the Guidelines are amended to take a more real-world approach to how support needs to change when a child heads away to college, it is up to attorneys to take a proactive approach to ensure that their clients pay support in line with this principle.