ARE YOU ENTITLED TO DEDUCT COLLEGE EXPENSES FROM SUPPORT PAYMENTS

By Sari M. Friedman
General Counsel Fathers Rights Association, NY and LI

How can it be that your neighbor can deduct college expenses from his support payments, but you cannot? It all goes back to your original Separation Agreement. Yet, Case Law is on your side. Your job is to use it.

1997 Case Sets the Standard

The Appellate Division Second Department, in Justino v. Justino, 238 A.D.2d 549 (1997) ruled that a father who has been ordered to pay 100% of a child's room and board, and tuition, while the child is away at school, could deduct this amount from child support payment during that period. Nevertheless, many courts were not granting this credit despite this case law. Some courts held this deduction did not apply unless the non-custodial parent was paying 100% of college costs; other courts found different reasons for denying the deduction.

Case Law Updates

Since the 1997 case, several other cases have produced substantial precedent for the Second Department. These newer cases have held that when a non-custodial parent contributes to a child's college expenses while the child lives away from HOME, even if it's a partial contribution, that parent is entitled to pay reduced child support, or to receive a credit for amounts contributed toward college expenses. Jablonski v. Jablonski, 713 A.D. 2d N.Y. 2d 184 (2d Dept., 2000); Sheridan v. Sperber, 269 A.D. 2d. 439 (2d Dept., 2000); Imhof v. Imhof, 259 A.D. 2d 666 (2d Dept., 1999); Vainchenker v. Vainchenker, 242 A.D. 2d 620 (2d Dept., 1997).

At this point, we believe the Appellate Division has restated its position affirming deduction, enough times to send a clear message to the trial courts that they really mean what they say.

What If Your Agreement Does Not Provide for Such a Deduction?

Your agreement is a contract. If it does not provide for such a reduction and instead provides for support, plus payment for college until emancipation, then you may not be entitled to apply to the Court for this deduction based on the cases referred to here. That's because you signed a contract to provide otherwise. 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 seek this deduction. On the other hand, if your Contract states it merges in the Judgment of Divorce, then you should be able to successfully seek this reduction.

How Can You Protect Yourself?

It is extremely important, when litigating your case, to assert your right to the college (or sleep away school) credit. The cases cited, do not provide a detailed explanation of how much your support payment must be reduced, or how large a credit you should receive. With the help of your attorney, formulate your strongest argument, focusing on your own resources and expenses as well as the custodial parent's resources and expenses. You will obviously want to explain why you cannot afford to pay both college expenses and support and that to do so, would be an improper financial windfall for the custodial parent. It is important when drafting or signing a Separation Agreement or Stipulation of Settlement, to include a provision for a reduction in child support when a child (or children) goes away to school. If the amount of the credit cannot be agreed to, then insert a clause stating that the non-custodial parent retains the right to apply to the Court to either reduce support for the period a child is away at college, or that states a parent should receive 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 reduction under these circumstances?

Yes, you can. And you should.

Your position could be that the child attending school away from HOME, and your contribution to these school expenses, constitute a change of circumstance. The Order of Support was set while the child was living full time with the custodial parent. Now he/she is not. The Order should, therefore, be modified to (1) reduce the support while the child is away at school, or (2) grant a credit against support for the amount of the school expenses.

Your attorney should be notified immediately if you think you have inadvertently cut yourself off from this remedy and look into what opportunities you may have that would recapture these rights.