In Alabama the judge has the discretion to order a divorced parent to help pay for college even after the child is an adult, if the relief is requested or the issue is reserved while the child is still a minor. The seminal case on this issue is Ex parte Bayliss, 550 So.2d 986 (Ala. 1989).
If the children demonstrate an aptitude and a desire to attend college and the non-custodial parent can afford to help with expenses, most judges would order payment. It’s reversible error for a trial court simply to extend child support past the age of majority of the subject children, so that’s not likely.
In Alabama, per the Bayliss case and its progeny (that’s a fancy lawyer term for the cases that came after it and interpreted it), there are four and only four categories of expenses the judge has the discretion to require a parent to pay for college: tuition, fees, room and board, and books. You can check out the current and projected college costs and see how much money that’s likely to be. Make sure you figure it WITHOUT the Transportation and Misc. and Personal Expenses, because they’re not in the court’s jurisdiction. At least for wage earners making less than $120,000 or so, the standard when the school isn’t yet decided would likely be the cost at Alabama or Auburn, not the cost at a private college.
How much of that the court would expect each parent to contribute depends on the parents’ respective incomes and the proclivities of the judge. The default, the easy percentage from the standpoint of the judge, is 50/50, even when there’s some difference between the parents’ incomes. Only if the incomes are dramatically different do you see the judge order one spouse to contribute more, and then it’s often 100%.
This describes what the judge is likely to order for college. There’s nothing to prevent the parents from agreeing to a different approach if they can reach agreement.
A common mistake of custodial parents is to allow the child to reach the age of majority without formally requesting assistance with college costs. If the child has already become an adult, and if neither parent has requested relief or reserved the issue, the court has no jurisdiction to order help for college. The moral of the story, then, is to make sure you file before the child reaches the age of majority (as I write this, it’s still 19, although there’s talk from time to time of lowering it to 18).
Isn’t This Unconstitutional?
Get any two or three divorce lawyers in Alabama together and say the word “college,” and it won’t take them long to stop talking about football teams long enough to debate whether Alabama’s rule on post-majority college funding is unconstitutional. Here’s the argument: If Mom and Dad stayed married, nobody would force either parent to pay for a college education for any of their children, certainly not after that child had become an adult. By imposing a burden on divorced parents that no one would think of imposing on still-married parents, aren’t courts discriminating against divorced persons?
The answer of the Bayliss court was “yes, but for a good reason.” The court quoted with approval this article,Educational Support Obligations of Noncustodial Parents, 36 Rutgers L. Rev. 588:
Following divorce the noncustodial parent, most frequently the father, often establishes a new life for himself, possibly including a new spouse, stepchildren, and new children. One result is that the interest, concern, care, and money of the noncustodial parent that is available for the children of the original marriage often declines or vanishes altogether. This is particularly true in such matters as the cost of education for their post-majority children. By imposing an educational support obligation on these parents, at least one of the disadvantages caused children by divorce can be reduced or eliminated. It is true that the imposition of this burden on divorced noncustodial parents establishes a classification with discriminatory obligations. However, as the Childers [89 Wash.2d 592, 604, 575 P.2d 201, 208 (1978)] court pointed out, instead of an arbitrary, inequitable, unreasonable, or unjust classification, what exists is a package of special powers in equity that the courts, regardless of legislation, have long used to protect the interests of children of broken homes and to assure that the disadvantages of divorce on these children are minimized. In short, the courts have found a reasonable relationship between this classification and the legitimate state interest in minimizing the disadvantages to children of divorced parents. . . .
So is the requirement of college funding for children of divorced parents a violation of the Equal Protection clause of the Constitution? No Alabama court has yet addressed this specific question, but Iowa addressed it inIn re Marriage of Vrban, 293 N.W. 2d 198 (Iowa 1980), as it related to a state statute on post-minority college funding. The Vrban court first satisfied itself that divorced parents are not a protected class (like a racial group or senior citizens) and that there is no fundamental right involved. So that meant the test should not be one of strict scrutiny but rather one about whether the classification is patently arbitrary or bears no relationship to a legitimate state interest.
The Vrban court determined that the state has a legitimate interest in promoting higher education for its citizens. The Vrban court didn’t say so, but a state may also have a legitimate interest in limiting the injury suffered by children from their parents’ divorce. The Vrban court went on to find that the statute concerned was rationally related to the state’s interest and that it addressed that interest in a manner that was neither arbitrary nor unreasonable.
What If the Parents Were Never Married?
Alabama has addressed this question, in Ex parte Jones, 592 So. 2d 608 (Ala. 1991). The Alabama Supreme Court ruled that never-married parents have the same obligations to fund college that divorced parents do.