Can the Family Court Award College Support?

In the March 7, 2012 decision in McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012) the South Carolina Supreme Court again authorized South Carolina family court judges to require unmarried or divorced parents to contribute towards their children’s college expenses.  McLeod overruled the decision in Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010), and again made the case of Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979) and its progeny the test in awarding college support.

Risinger sets forth a four part test in determining whether the family court should order college support: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education.

Case law subsequent to Risinger further clarifies the family court’s ability to award such support.  In Hughes v. Hughes, 280 S.C. 388, 313 S.E.2d 32 (Ct.App.1984), elaborating upon the third prong of the Risinger test, held that:

Among the factors to be considered in determining whether and to what extent financial assistance for college is necessary are the availability of grants and loans and the ability of a child to earn income during the school year or on vacation. We find these factors relevant because an emancipated child has a duty to help minimize college expenses when a parent’s financial support for these expenses is sought through the family courts.

One possible reading of McLeod locates an additional requirement before the court can award college support: that college support can only be ordered for “those children whose parents would otherwise have paid for their college education, but for the divorce.”  It is unclear whether and how the family courts will implement this requirement.

Finally, a parent may contractually obligate himself to pay college expenses of a child greater than those required by Risinger and its progeny.  McDuffie v. McDuffie, 313 S.C. 397, 438 S.E.2d 239 (1993).