The Cost of Education: Post-Secondary Support in Family Law

The issue of post-secondary support is a hot topic in family law. Over the past five to ten years, tuition has skyrocketed nationally, but particularly in Washington. Here, it increased 67.3% in the five years before 2012. For the 2013 UW class, tuition had increased 82 percent over the prior four years.

As of 2013, the University of Washington had gone from the 25th most expensive state flagship school in the nation to the 11th, making it particularly challenging for middle-class families to afford the cost of tuition, books, room and board, and fees, with these costs at the UW for the 2012–2013 year totaling $26,066. According to the UW’s website, the annual budget for a freshman for the 2014–15 academic year is $27,112. This results in a monthly cost of $2,259.33.

In Washington state, divorced parents may be required to pay for post-secondary support pursuant to RCW 26.19.090. A recent partially published decision came down from Division II on March 10, 2015: Anne Sprute (Bradley), Respondent v. Eric Bradley, Appellant, 45608-7 discussed whether there would be limits on parents’ obligations.

The court rejected the argument that post-secondary educational support should be limited to the cost of public school or that it should be limited based on an ability to pay, finding that unless it resulted in the actual need to file for bankruptcy, a post-secondary award by a trial court is within its discretion.

The court declined to consider Bradley’s argument that there should have been a cap at 45% of his income because he did not address that argument at the trial court level.

The court did find that because post-secondary support creates an obligation to pay for a child, when looking at the child support schedule, the two-child household column needed to be used for the couple’s still-dependent child.

Interestingly, courts do not tend to look at the child support schedule to determine the amount of post-secondary support. Instead, courts look at the cost of attendance. Typically, courts divide the cost between the parents or between the parents and the student, resulting in an obligation far above what the parent would pay if it were based on the child support schedule.

Additionally, support for a dependent child is decreased an average of 23.55%, based on a two-child versus one-child schedule, in order to provide post-secondary support for a nondependent child.

A case could go to the Washington Supreme Court and they could interpret RCW 26.19.090(1) or RCW 26.19.065(1) to place limits on the amount of post-secondary support award. Alternatively, the Legislature could revisit the issue of post-secondary support. When the statute was first passed, the total cost of support at a state school was well below what most people would have paid for child support. Since current tuition costs were likely not anticipated by the Legislature, they could place upper limits on the amount of post-secondary support.

In the meantime, couples splitting up should no longer reserve the issue of post-secondary support. They should make it clear what their intentions are at the time of dissolution. They should include their own caps on how much they are willing to pay, i.e., post-secondary support shall not be ordered in excess of what they would pay if the child were still a dependent; post-secondary support cannot be ordered in amount of greater than 12% of the parent’s income per child; or the total cost of post-secondary support shall be limited to no more than $13,000 per year per parent, or simply that they will not be required to pay post-secondary support and make all post-secondary support contributions voluntary instead of court-ordered.