A question I get from my clients, even with young children, is whether or not they are required to pay for their child's college expenses, tuition, room and board, books, etc. when their child reaches the age of 18 and beyond. This question has a storied past in South Carolina.
South Carolina courts first addressed this issue in the late 1970s. In 1979, in the case Risinger v. Risinger, our Supreme Court held that a parent could be obligated to pay for college expenses for their child, even beyond the child reaching age 18 or emancipating. In its decision, the Court set forth four factors to be analyzed in determining whether or not it was appropriate for a trial court to order a parent to pay those expenses.
The first factor that the Court said must be considered is whether or not the child will benefit from a college education. This is a check-the-box factor. Most parents will have a difficult time establishing that their child would not benefit from a college education. As a society, we recognize the benefits of education and encourage more children than not to attend college. Most trial judges in South Carolina will likely find that the child would benefit from obtaining a college education. However, this is only one factor in the Court's analysis.
The second factor the Court said must be considered is whether or not the child demonstrates an ability to succeed in school, or at least earn satisfactory grades. Accordingly, the child's must be able to demonstrate that they can do well and succeed in college before the Court is going to obligate a parent to pay those additional educational expenses.
Third, the Court said we must consider whether or not the child would otherwise be able to afford going to college. This means that only in cases where the child can establish there is no other way, financially, that they can attend college, should a family court obligate a parent to pay for expenses associated with a college education. In today's society, this will be a large hurdle for the child to overcome. Essentially, the child must prove that it is financial impossible for them to obtain a college education, unless the court mandates their parent pay for it. In a time of ubiquitous financial aid this will likely be difficult for the child to establish.
Lastly, the family court must consider the parent's financial ability to pay. However, while the court must consider this factor, the child's need will be weighted heavier than the parent's ability in the court's analysis.
It is important to note that in 2010, the Supreme Court of South Carolina held that the Risinger case was unconstitutional because it treated children of divorced parents differently than it treated children of married parents. The Court noted that it violated the United States Constitution for the law to treat these two classes of children disparately. However, only two years later, the Supreme Court re-instated Risinger in the case McLeod v. Starnes. Because of this, Risinger is now the law of South Carolina once again. In McLeod, the court explained that the State of South Carolina had an interest in aiding children whose parents, but for divorce, would have paid for their children's college expenses. If divorce, and divorce alone, is the only reason that the parent is not paying for college expenses, then the court seeks to give the child a remedy in seeking that support back from their parent.
Looking back through the history of these cases, by reinstating Risinger, the Court also reinstated all of the other post Risinger decisions. One of these cases, Hughes v. Hughes, expounds upon the third factor set forth by the Court in Risinger, whether or not the child could otherwise afford to attend college. In Hughes, the Court held that in determining whether or not a child can independently afford to attend college, family courts must consider the availability of scholarships, grants, and other monies available to the child that may help them pay these costs. Secondly, the Hughes court held we must also look to the child's ability to earn an income, including summer work, vacation periods, and part-time work during the school year. Under most circumstances if a child is able to attend school, then they're likely able to earn an income. In these cases, coupled with the fact that financial aid is so widely available, our court's have held parents should not be obligated to pay anything for college expenses, or if they are, a nominal amount.
In conclusion, while a parent can be required to pay for college education expenses in South Carolina, there is a list of factors that must be considered in determining whether or not that is appropriate. Looking specifically at the third factor set forth in Risinger, the child's burden to prove they are unable to otherwise provide for those costs, it will likely be difficult, in today's society for a child to establish a strong case for support.
Lastly, it is important to note that when parents divorce prior to the child reaching age 18 or emancipating, and they agree in their divorce agreement to pay or divide the child's college expenses, that agreement, incorporated into a divorce order, remains binding on them and can supersede the requirements set forth in the Risinger case. If, for example, a father agrees to pay all college expenses, or reasonable college expenses, or half of all the reasonable college expenses, then that alleviates the child's burden later on to prove that they can't otherwise afford college. Whereas under normal circumstances, the child would have to prove that they can't earn an income for whatever reason, or they can't obtain federal loans, student loans, or financial grants for them to attend, the divorce agreement could trump all of that, and alleviate them of that burden. This is important to understand prior to entering into any settlement agreement, even when the child is not nearing college age.