As covered in previous articles by the Birmingham divorce attorneys at Boles Holmes White, the Alabama Supreme Court recently issued a landmark decision in Christopher v. Christopher, which overturned a well-established 24 year old legal precedent within Alabama.  Prior to the opinion in Christopher, which was released on October 4, 2013, non-custodial parents in Alabama could be ordered by a divorce judge to pay post minority support for a child in the form of college tuition and costs.  This now defunct law came into effect with the Alabama Supreme Court case of Bayliss in 1989, which had become black letter law for every Alabama divorce attorney from Birmingham to Dothan and Huntsville to Mobile.

With the ruling in Christopher, Bayliss has now be expressly overturned, meaning a parent can no longer be forced by a divorce court to pay for a child’s college education as part of child support.

But what happens if two parents enter an agreement whereby, one parent is willing to pay for the children’s college tuition as part of a negotiated settlement.   While this will become less common in Alabama after the Christopher decision, it is foreseeable that such an agreement could be reached where one parent agrees to such a payment, in exchange for some other concession by the other party.  Such a concession could be the waiver of alimony or agreement to a smaller property settlement than the custodial parent was originally seeking.  It is also conceivable that the parents’ values are such that they both want to ensure their children obtain a college education and want that agreed upon in advance in the divorce decree.

It is likely that payment of college tuition could still be negotiated into a divorce settlement and enforced by a Court, if both parties agreed to the terms at the time of settlement.

What could be interesting is how the divorce courts of Alabama deal with such voluntary agreements, and the breach of those agreements.  After the ratification of such an agreement by the divorce court, could the non-custodial parent simply change their mind and decide not to pay for college as agreed?  If not, what are the divorce court’s remedies for the breach of the agreement to pay college tuition and costs?  Can they enter a contempt order, or a money judgment against the non-paying party?

What if the parent had encountered a significant material change in circumstances from the time of the agreement when perhaps the children were very young, until a decade later when they enter college?  Would such a material change in circumstances allow the parent to negate their previous agreement, or would they still be on the hook regardless?  These, and other questions, will likely have to be settled on a case-by-case process through the judicial system over the next several years.

If you have a question about a divorce, child support, or payment of college tuition in a divorce setting, call the Birmingham divorce attorneys at the Birmingham legal team of Boles Holmes White for assistance with your family law question.