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Is a Divorce Agreement to Pay Child College Expenses Modifiable?

Georgia courts cannot order a parent to pay for a child’s college expenses because they do not have the power to order child support past the age of 18 years, unless the child is enrolled full-time in high school, and then until no later than the child no longer being enrolled (dropped out or graduated), but no later than age 20.  O.C.G.A. 19-6-15, 19-7-2.  Coleman v. Coleman, 240 Ga. 417 (1977).

This does not give a Georgia court the power to order college expenses (unless a child goes to college prior to age 18, which will be a very rare event, and then only up to age 18).

However, by agreement, the parties can agree to pay child support for as long as they want, and this includes paying for a child’s college expenses.

This is a dangerous thing for a party to do because there are too many variables. College expenses are expensive, unpredictable, and keep getting more expensive. You may become estranged from your kids, who demand that you pay. You may lose your job. You may go bankrupt, or there may be some other serious situation. But you still need to pay! 

To try to avoid this sort of nightmare, college provisions are often drafted to limit liability: no more than in-state tuition, no room and board, only until aged 23, or the like. Yet horror stories persist from parents agreeing to pay unlimited college expenses. 

Trying to get out of a college provision, or at least mitigating such expenses, is a legal challenge in the State of Georgia. Although Georgia courts may not be able to order you to pay for your children’s expenses, they certainly have the power to enforce such a provision in a Settlement Agreement.  McClain v. McClain, 235 Ga. 659 (1975).

Traditionally, this has been a power that does not allow for modification in Georgia.  But is that interpretation in error by Georgia courts?  Upon change in financial circumstances a parent has the right to modify child support based upon material change in financial circumstances.  

Is this agreement to pay child support in the nature of child support or in the nature of a property settlement/contractual agreement?  If it is in the nature of child support, it should be modifiable.  The State of Michigan has recognized this to be the case in Top v. Silver, unpublished opinion per curium of the Court of Appeals, Docket No. 250275, January 25, 2005).  

This also makes sense in the State of Georgia. Prior to agreeing to pay for college expenses for your children, please talk to a good attorney first!  Second, if you have already agreed to do so, and the bill is coming due, but you cannot afford it, find an extremely good Georgia attorney and we may be able to do something about it.

Scott Shaw is founder and principal of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today or call us at 770-594-8309.