Divorce and the Costs of College: Applying a SUNY Cap

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The college application process can be an extremely stressful experience in a young person’s life; adding to the child’s stress about deciding where to apply and which school to attend is the child’s awareness that his or her choice of a college will provide yet another opportunity for parental conflict over who is going to pay for college.  In New York, divorced parents oft seek to apply the “SUNY cap.”

The SUNY cap is one of the devises employed by New York divorce attorneys to address the issue how to pay for children’s college education.

It is common in New York for divorcing parents to agree in their settlement agreements how college expenses will be paid.  Sometimes the parties agree to split the actual costs of pursuing a higher education; other times one parent solely agrees to bear the burden.   More often, the parties agree to limit their obligation to pay for their children’s college education to a percentage of the cost of a State University of New York (SUNY) school.   This limitation is referred to as a “SUNY Cap.”

An agreement to apply the SUNY cap and to limit a parent’s contribution to a child’s college education will be enforced regardless of whether the child attends a public or private educational institution.

In the absence of an agreement, the Domestic Relations Law empowers a court to order a parent to pay for college.  Among the factors that Courts  consider in determining whether to award college expenses are the educational background of the parents, their financial ability to provide the necessary funds, the child’s academic ability and endeavors, and the type of college that would be most suitable for the child.

More problematic is when, in the absence of an agreement, college expenses will be paid.   In the recent case, Pamela T. v Marc B., the parties did not have an agreement as to how they would pay for the children’s college education, the court refused to apply a SUNY cap.

In Pamela T.  v. Marc B., the Court announced that:

There is no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child’s college expenses.

The Court noted that even if a SUNY were to be imposed, it would not be determinative as to what school the child would attend.    As the Court noted:

Contrary to what proponents of a wide and liberal application of the SUNY cap might urge, the SUNY system should not be the assumed destination of the children of divorce.

In selecting the college, a litany of factors should be considered, including the educational curriculum, the make-up of the student body, and active alumni networks. “Other considerations might include such things as the size of the school, the type of campus, the architectural distinction of the buildings, the nature of its athletic programs, the services provided to students with either physical or learning disabilities, and the type of city or town in which the school is located. “

In short, the failure to address the how the costs of college will be handled in a settlement agreement only leaves the door open to litigation when the children are college bound.

6 Responses

  1. Catherine Wilson

    I am actually the victim that the Appellate Court mentioned in this desicion – my ex husband, Ray Powers, is a Law Secretary in the NYS Courts system so he managed to manipulate favorable court orders in our divorce from his peers, including the “SUNY” cap restriction for our childrens’ college. How the courts believe that they have the right to limit a child’s future is beyond me but my objections and appeal fell on deaf ears. However, now that the courts have actually admitted they are utterly wrong on this issue, how can I get them to fix the problem they created for my children at this point? (many years later)

  2. Thanks for your comment. If your children are still in school, perhaps you can file a new application. On the other hand, if your children are not in college, you are probably out of luck-laws are not applied retroactively.

  3. Divorced Mom

    Thank you for your blog. I’m wondering whether you have any thoughts on my situation. Divorced per agreement in Supreme in 2004. Agreement provides for SUNY cap and that expenses up to cap will be paid pro rata. Last year, child number one began college. Ex told me that pro rata applies to my new husband’s income and also that I am not making enough money — therefore he “imputed” income to me (without bothering to go to court) and he only paid a relatively small amount. I went into Family Court with Petition to Enforce Agreement and also Petition for Upward Mod. Case is adjourned.
    Question: can I now argue to Magistrate that SUNY cap should not apply because he already breached agreement and because circumstances have changed?

  4. Thanks for the compliment. Your situation is very fact intense and I do not have all the facts. Moreover, this is probably not the best forum to provide specific legal advise. I would be happy to speak with you offline.
    Daniel Clement

  5. NYSsx

    My husband divorced from his ex in 2006. There was no stipulation about college expenses. He has one adopted son (her biological) with her and 2 young children with me. His child support payment was determined to be about $600 a month in 2006. His ex enrolled her son in an expensive private college without consulting us and our expenses toward his education are estimated to be $900. My question is since the son will not be living at home during college (it is in a different city) would it be reasonable to expect that the $600 child support payment will be applied toward the room and board expenses or do we have to pay $900 PLUS the $600 in child support. If this is the case then the ex wife will essentially be paying nothing towards her son’s education as the $1500 expected of us will cover his entire tuition, room and board. PS: We offered to pay $1000 a month total which would leave her to cover approximately $400 each month for his expenses.

  6. The basic child support award may be reduced, but not eliminated when the child is attending college The reason is that some of the expenses- room and board- would be duplicative.

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