Every parent wants their children to have the opportunity to go to college and prepare themselves for a career. In the midst of a divorce case, however, making your children’s college plans can be problematic. A child support order under ARS §25-320, is limited to age 18 or graduation from high school, whichever occurs later. The Court will not expressly order either parent to pay for college or specifically get involved in the issue.

Although the Court doesn’t have the power to deal with the issue of college education, parents can and often reach an agreement on paying for college. Parents can agree to contribute to their children’s college expenses in proportion to their respective incomes or negotiate a different financial arrangement. In addition, parents often include language in their agreement that the contribution is contingent upon the child attending a certain type of school (i.e., public or private), attending school full-time and maintaining a specific grade level. Although the Court will not order parents to pay for college education, the agreements reached by parents are enforced by the Court. While a parent is not required to agree to pay for college, a college agreement is worth pursuing in negotiations with your spouse, if another college payment plan is not already in place (see 529 plan discussion below).

To a much lesser extent, the issue of paying for college can be addressed in the award of spousal maintenance. The ability of each parent to contribute to the college expenses for their children is one factor the Court can consider when it decides whether to award spousal maintenance. See ARS §25-319(B)(8), which states “the ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.”

If you have already started a college savings plan (commonly known as a 529 plan), a few points to keep in mind:

  • Because of financial institution regulations, 529 account balances cannot be divided, like other assets or have more than one owner. The parent who was listed as the “owner” of the account when the account was created will remain the “owner” of the account at the conclusion of the divorce case;
  • The Court, however, can order that the parents will jointly decide and jointly approve of how the 529 account monies will be used, as part of a Parenting Plan or the final divorce decree;
  • Despite recent changes to the federal tax law, contributions to a 529 Plan may still provide some tax benefit; and
  • As a parent who just finished financing one of my daughter’s undergraduate studies with her 529 account, start contributing as early as possible, if you can afford to do so. Even with fluctuations and corrections in the market, your contributions will likely pay off over time (you should, however, consult with a financial or tax advisor to determine the investment that is right for you).


About the Author:

Steven Wolfson (Member, Phoenix) focuses his practice on all areas of family law, including legal decision-making and parenting-time disputes, business valuations, spousal maintenance and high-income child support determinations and pre and post-nuptial agreements. He has been certified as a specialist in family law by the State Bar of Arizona Board of Legal Specialization and serves as a Judge Pro Tem in the Maricopa County Superior Court for family law cases. Please contact Mr. Wolfson in our Phoenix office at 602-285-5037 and visit his bio here.