For determining household size (the number of family members), criteria 3 is the most important. However, the student's custodial parent gets to list him or her even if the custodial parent does not provide more than half of the student's support. This leads to the anomalous situation where a student can be counted as belonging to two different households. For example, suppose the non-custodial parent remarries and has college-aged children of his own. If the non-custodial parent provides more than half of the student's support, he gets to list the student as a member of his household even though the custodial parent has also listed the student as a member of her household. (The IRS tax return instructions prevent this kind of double dipping on tax returns, but the FAFSA instructions apparently don't.)

Criteria 3 is also used to determine whether the student has one or more dependents, in the rules for specifying whether the student is an independent student with dependents.

Criteria 4 and 5 are not used in the financial aid formulas, but are sometimes used to give an indication of the right choice when the other criteria are insufficient. Criteria 5 is also sometimes used to substantiate claims made under criteria 3. For example, a financial aid administrator may ask a parent for a copy of their tax return, to see whether they claimed the child as a dependent. Criteria 5 usually implies criteria 3, because the IRS definition of a dependent includes a 50% support test. There IRS definition includes a few exceptions where the parent isn't required to provide more than half the child's support in order to claim the child as a dependent, but in almost every case, if the parent could not claim the child as a dependent (criteria 5), they did not provide more than half the child's support (criteria 3).

Obligation to Help Pay for College

Is the non-custodial parent required to help pay for college?

The Federal government does not consider the income and assets of the non-custodial parent in determining a student's financial need. However, it does consider child support received by the custodial parent.

Many private colleges do consider the non-custodial parent as a potential source of support, and require a supplemental financial aid form from the non-custodial parent. This affects the awarding of the school's own aid, but not Federal and state aid.

Whether divorced parents have a legal obligation to pay for their children's education depends on the state in which the divorce occurred. Several states have laws or case law that allow courts to order the non-custodial parent to help pay for college. These states include Alabama, Arizona, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Jersey, New York, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Washington and West Virginia. States which prohibit the courts from ordering college support (except for enforcing a previous agreement between the parents) include Alaska, Nebraksa, and New Hampshire. (As of 2/2/2004, New Hampshire judges no longer have the discretion to order college support for adult children.)

Depending on the state, the college support may include more than just educational expenses, such as tuition and books, but also extracurricular expenses and a monthly cash allowance. The courts will generally order the ex-spouse to pay half of the college costs regardless of the institution chosen by the child. Even in states where the courts do not have the power to compel the non-custodial parent to pay college expenses, the court may consider college expenses when deciding whether to award alimony.

The basis for these laws is a 1998 study that showed that children of divorced parents are less likely to matriculate in college and receive less financial support than children of intact marriages. The study (Judith S. Wallerstein and Julia M. Lewis, "The Unexpected Legacy of Divorce: A 25 Year Landmark Study", Hyperion Press, 2001) found that 29 percent of children with divorced parents get parental support for college expenses, compared with 88 percent of children from intact families.

Others argue that these laws are unfair, since there is no similar requirement on parents who are not divorced, nor is there a similar requirement on the custodial parent. Also the law, although gender neutral, is disproportionately applied to fathers. The Pennsylvania state Supreme Court overturned Pennsylvania's statue in 1995 (Curtis v. Kline, 666 A.2d 265, 1995), ruling that there was no basis for distinguishing divorced parents from non-divorced parents.

College Support Agreements

It is best for parents who are in the process of getting divorced to prepare a written college support agreement in addition to a child support agreement. Such an agreement should specify who is responsible for how much of the college expenses, how many semesters of support will be provided, any limits on annual payments, indexing payments to the tuition at a particular college (e.g., a state college), whether there is an age limit (i.e., up to age 24, when the student becomes automatically independent), and any restrictions on colleges the child may attend (e.g., specific colleges and accreditation). (Although it is common for college support agreements to specify that the child must attend a state college, it is better to index the support requirement against the state college tuition while allowing the child the flexibility to choose another college. For example, one could specify that the non-custodial parent will provide 50% of the tuition at the state college or the college where the child enrolls, whichever is less. It is also common to base the college support requirement on the expected family contribution figure.) The agreement should also specify what constitutes college costs (i.e., just tuition and required fees, or also room and board, transportation, health insurance, textbooks and other educational expenses) and whether there are any requirements the child must satisfy to receive continued support, such as achieving a minimum GPA and taking a minimum number of credit hours. The agreement should also specify whether the college support is to be paid directly to the school, to the custodial parent, to the child, or to a combination. Often the percentage of college costs is divided proportionately between the parents according to income after subtracting non-discretionary expenses such as taxes, basic living expenses and health care. This is the same as the "income shares formula" used by most states for child support.

Section 529 prepaid tuition plans and section 529 college savings plans are especially popular vehicles for funding the college education of children of divorced parents, as they permit the non-custodial parent to limit their financial obligation by prepaying for a set percentage of college costs.

Although child support requirements terminate in most states at when the child reaches the age of majority (usually age 18 or 21), there is often an exception for children who are enrolled in a postsecondary educational institution or have special needs. Even if child support has terminated, the non-custodial parent might still be required to provide college support.

Note that college support agreements might not be binding on the estate of a deceased non-custodial parent in some states (e.g., Massachusetts).

Studies have found that children who have kept in contact with the non-custodial parent are more likely to receive greater support. Fathers with joint legal custody provide more college support than fathers without custody, and fathers with visitation rights provide more college support than those without visitation rights.

Obligations of Stepparents

My parents are divorced, and the parent I'm living with has remarried. Does my stepparent have to report his or her income and assets on the FAFSA?

Yes, provided that the parent you're living with is the one filling out the FAFSA (your custodial parent). If your stepparent is married to them at the time you fill out the FAFSA, they must report their income and assets even if they weren't married to them in the previous year.

My custodial parent remarried and signed a prenuptial agreement that absolves the stepparent from financial responsibility for my education. Why does my stepparent have to provide financial information on the FAFSA?

Prenuptial agreements are ignored by the federal need analysis process. After all, two individuals (parent and stepparent) cannot make an agreement between them that is binding on a third party (the federal government). The federal government considers the stepparent a source of support regardless of any prenuptial agreements to the contrary. If a stepparent marries the parent, he or she is considered responsible for supporting the parent and children even if he or she is unwilling to do so.

College Support and Income Taxes

Can a non-custodial parent who is paying college tuition directly to a college take advantage of education tax benefits such as the Hope Scholarship?

The non-custodial parent can only take advantage of the education tax benefits when he or she claims the child as a dependent. If the non-custodial parent does not claim the child as a dependent on his or her income tax returns, but the custodial parent does, the custodial parent can claim an education tax credit based on the tuition paid by the non-custodial parent.