“Who gets the kids” is a cliched question associated with many divorces. Yet what happens when the “kids” are really adults between the ages of 18 and 23 and in that next phase of life after high school? Does that or could that impact the type of divorce you choose—litigation, divorce mediation or collaborative divorce?
The answer to both questions is yes.
Typically, in a divorce with children under the age of 18, the custodial parent will receive child support from the other parent consistent with the Child Support Guidelines and a parenting schedule will be arranged. Things change when the child turns 18. First, the parenting schedule goes away. The child is legally entitled to decide whether and when to spend time with each of his or her parents.
The question of child support also changes once a child has graduated from high school or turns 18. Children 18 or older who continue on to college are still entitled to support from their parents until the first to occur of their graduation from college or reaching age 23 but the amount is not as clear. Instead, the amount of child support factors in not only the child support guidelines but also parent’s contributions to college. Children who graduate from high school but do not go on to college may be deemed emancipated in which case they are no longer eligible for child support. Then there is the middle ground – children 18 and older who do not go on to college but are still dependent on a custodial parent. These children might be eligible for support until they reach age 21.
If you are divorcing while your children are in the 18-23 age bracket or approaching it, there needs to be conversation about your children’s post high school plans. It all starts with whether he/she will be attending college. If yes, part of the negotiation needs to be, among other things, the level of assistance you and your spouse will offer.
Also, a part of the equation is where your child will reside during their college years. Will he/she live at school? If so, where will he or she live during breaks and summer? If your child is a commuting student, again, where will he or she live? This plays a part in the child support formula.
If your child chooses to enter the work force and moves out of the family home, your child will probably be emancipated. This ends child support and your child is, in the eyes of the law, on their own.
While this seems pretty straightforward, it never is quite that simple. As we know from our own experiences, there is no one traditional path. College students start school, take time off, require an extra semester or more to get their degree or any number of other scenarios. For example, children may skip or quit college, live on their own but still be unable to support themselves completely. They may end up taking a college class while also working. During your divorce settlement, there needs to be some frank conversations about your adult children, their present and their immediate future. The type of divorce you choose can be a very large factor in the quality of that discussion.
In litigation, you really don’t have a number of choices. The amount of child support will be based primarily on whether your child is attending college or not. Child support will still be factored in by a formula based on the income of you and your spouse. The custodial parent will receive the support check and the courts will determine the percentage each party is responsible for college. That can either be a 50-50 split between you and your spouse or a 33-33-33 percent split between you, your spouse and your child).
As we have discussed in many blogs, divorce mediation and collaborative divorce provide more flexibility to negotiate. The question lies in approach. In divorce mediation, it is not unusual for parents to agree to provide more for the children than the law would mandate. At the same time, it is important to set time limits on obligations so that everyone knows the full extent of their obligations. You can negotiate with your spouse more unusual scenarios for paying for college, who will live where, child support, etc. Many times, a divorce requires the selling of a family home and that can require even further discussion as part of the negotiation.
In a collaborative divorce, you will have at your disposal a team of neutral experts—financial planners, accountants, etc.—who can help you and your spouse explore a number of scenarios factoring in financial feasibility and other variables. Additionally, a divorce coach/facilitator could be part of your team of experts. This professional can help you and your spouse break through communication barriers and develop a foundation on how you communicate with each other both about your children and other issues.
We can all agree that nobody wins in a divorce. Yet the necessary discussions that take place in a collaborative divorce or in divorce mediation can benefit all involved. Especially if your children’s individual situations and needs are integral parts of the discussion about them. With everyone’s cards on the table, you and your children can go towards their immediate future knowing where things stand and the challenges they will need to address.