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Out of State Ruling Leads to Rethinking Divorce Settlements that Include College Tuition Provisions

A recent out of state court ruling may lead divorcing couples to rethink provisions in their settlements as it pertains to their children's college education commitments. The potential consequences of such a ruling fall on divorcing parents, who might now be reluctant to accept a commitment to fund a college education as part of their settlement, and their college-bound children who might face a more uncertain future.

Though this court ruling emanated from New Hampshire, it certainly demands attention in California and elsewhere. Annmarie Timmins, of the Concord Monitor (January 31, 2009) reported on the ruling in a recent article. In Timmins' article, Dad Can't Be Forced to Pay College Costs - N.H. High Court says Divorce Decree Null, she detailed the decision, "New Hampshire courts can't force divorcing couples to pay for their child's college education. That's true, the state Supreme Court ruled yesterday, even when one or both the parties initially agree - in writing -to pick up the tab." The heart of the matter, as it concerns both court-watchers and divorcing parties, was the Court's nullification of a commitment to contribute to a fund that was written into the divorce settlement. Timmins described the prior agreement, "The couple and their respective lawyers put that agreement in writing, and Merrimack County Superior Court Judge Kathleen McGuire approved it as part of their divorce decree."

The father then decided to change his commitment, and petitioned the court as such. After appealing his case to the New Hampshire Supreme Court -after losing a lower court decision -the father was successful in reneging on his previous written commitment to fund his son's college education. This is an important decision that reverberates loudly in divorce settlement cases. The Concord reported, "[The child's mother] sounded distraught and terrified about what the ruling will mean for her son's education."

When it comes to your child's college education, seek your attorney's advice on all options including irrevocable Uniform Gift to Minor Accounts or pre-paid plans. With all the uncertainty that today's economy brings, your child's college education commitments should be not be one of them.

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William A. Feinberg 1928 - 2001

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