Paying for Child’s College After Divorce ▪ Charleston Family Lawyers
Less than two years ago, the South Carolina Supreme Court issued a family court decision in Webb v. Sowell wherein the court decided that ordering a non-custodial parent to pay college expenses violated equal protection. In Webb, the court compared those parents subject to a child support order at the time the child is emancipated versus those parents who were not. The court “concluded that there is no rational basis for treating parents subject to such an order different from those not subject to one with respect to the payment of college expenses.” However, less than two years later, on March 7, 2012, the South Carolina Supreme Court reversed itself in the case of Starnes v. Starnes. In Starnes, the court held that “requiring a parent to pay, as an incident of child support, for post-secondary education under the appropriate and limited circumstances outlined by
[other family court cases] is rationally related to the State’s interest. While it is certainly true that not all married couples send their children to college, that does not detract from the State’s interest in having college-educated citizens and attempting to alleviate the potential disadvantages placed upon children of divorced parents. Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced. It is of no moment that not every married parent sends his children to college or that not every divorced parent refuses to do so.”
In Starnes, Supreme Court Justice Beatty dissented and wrote that after a child is emancipated (turns eighteen or graduates from high school, whichever comes later), the family court no longer has jurisdiction under South Carolina legislation to order a parent to pay education expenses. As noted by the dissent, the family court could not ordered married parents to pay for a child’s college. Therefore, the dissent concluded that ordering a divorced parent to pay for college violates equal protection under the Constitution because there is no “legitimate reason to treat treating separated, divorced, or unmarried parents and their children differently than their intact counterparts.”
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