University of New Hampshire Law Review


[Excerpt] "Divorced parents in New Hampshire can rest a little easier these days. While there are a myriad of economic reasons why a divorce can become contentious, financing a child’s college education can no longer be included among those reasons. In January 2004, in a rather bold and unconventional move, the New Hampshire legislature overruled years of legal precedent and enacted a new statutory amendment that should alleviate some of the financial pressures divorced parents inevitably face. The amendment, RSA § 458:17(XI-a), is a victory for divorcees across the state because it prohibits superior court judges from issuing orders forcing divorced parents to contribute to their adult child’s college expenses.1 The best interest of the child rule is consistently invoked by American courts when dealing with children in custody disputes because courts have an overriding interest in protecting a child’s welfare.2 Generally, this rule is applied with the best of intentions. However, the best interest of the child rule should never be considered when dealing with post-secondary education payments. By ordering divorced parents to support their adult children, courts across the country continue to violate the constitutional rights of those parents. Treating similarly situated people the same should be the goal of our legal system. Ordering divorced adults to pay or contribute to their child’s college expenses, when no such order can be made of married adults, does not accomplish this goal. As a result of these unjust orders, the equal protection rights of divorced parents are consistently violated throughout this country. The New Hampshire legislature recognized the inequality of these judicial orders and recently amended the law.3 Now is the time for all other states that do not have similar laws currently in place to follow suit. Over the last fifty years, divorce has become commonplace in American society with divorces doubling over that time, from 2.3 divorces per 1,000 people in 1955, to 4.6 divorces per 1,000 people in 2001.4 Divorce rates now are around fifty percent nationwide.5 As a result, stigmas once associated with divorce have all but disappeared. However, one stigma still remains in some states: requiring divorced parents to pay for college education expenses of their children.6 By ordering married couples to pay for their child’s college education, states would be viewed as interfering with the sanctity of marriage. As a result, states do not impose limits on parents’ decision-making as it relates to a child’s upbringing. Therefore, every intact family is free to decide whether a child will go to college, where the child will go, how payments will be made, and who will contribute to the expenses. Even with the college tuition burden falling by about one-third since 1998, the decision about how to pay for college should be resolved by the child’s parents, whether married or divorced, at the time a child is eligible to go to college since higher education expenses take a large portion out of most families’ income.7 Judges should not be able to order a parent who is, and always will be, unwilling to pay for college expenses to make payments solely because he or she is no longer married. Parents should be free to provide for current and future college expenses to the best of their ability at the time a child reaches the appropriate age; they should never be required to do so. This article will use the recent New Hampshire amendment, prohibiting judges from ordering parents to pay for college expenses, as a backdrop for advocating that all states pass similar statutes. Part II of this article begins with a discussion of the state of the law in New Hampshire before the statute was amended in 2004. Next, the article discusses the relevant portions of the recent New Hampshire amendment. The article next outlines laws from various states in order to compare and contrast views from the rest of the country. In Part III, the focus shifts to the equal protection arguments both for and against divorced parents in relation to mandatory post-secondary education orders. Part IV of this article will analyze the laws from various states and address problems courts have either failed to address or have inadequately addressed. Finally, this article concludes by advocating in favor of the New Hampshire amendment and arguing that other states should follow New Hampshire’s lead and adopt similar versions of RSA § 458:17(XI-a).”

Repository Citation

Ryan C. Leonard, New Hampshire Got it Right: Statutes, Case Law and Related Issues Involving Post- Secondary Education Payments and Divorced Parents, 4 PIERCE L. REV. 505 (2006). Available at http://scholars.unh.edu/unh_lr/vol4/iss3/7

Included in

Law Commons