Ask Carolyn
Dear Carolyn,
I live in Raleigh, NC and was divorced in 2009. Our separation agreement (signed and notarized) states that each parent is to pay one-half of all college expenses. My son is now 18 and daughter 16. My ex is now balking at paying one-fifth of the college expenses for my son. What remedy do I have?
Carolyn Answers…
Under your facts, you have a very clear remedy for breach of contract. While the court in a domestic relations case will not order college expenses as child support in North Carolina, a parent can contract for college expenses. Your ex has a contractual obligation to pay half of all college expenses. (I am unclear why your question asks only about one-fifth when half is required by the contract. Typo? Regardless, my answer remains the same.)
If the contract literally says “all college expenses,” your ex is on the hook for more than tuition, room, and board. Case law interprets “all college expenses” very, very broadly. You need a consultation with a family lawyer to file a lawsuit for this breach. I would not wait, as these cases can take a few months to get through the court system. Also, sounds like the ex also may not want to pay for the sixteen-year-old in the future. I’d get the pattern of the ex paying half going asap.
On another note, see if your contract (separation agreement) also provides for attorney fees to a prevailing party in a breach. Many do. While the attorney fees provision may not cover all costs, it should cover most. You might have your lawyer write a letter explaining to the ex’s lawyer that the ex will owe you your attorney fees if the ex persists in the breach of the contract. That might make the ex pay the college because the ex possibly will not like the prospect of paying your attorney fees.
Dear Carolyn,
My ex-wife moved out of state voiding my rights in the separation agreement to have visitation with my then minor children. I diligently paid more than fair child support until each graduated high school. There is a payment of “family support” due to my ex-wife every month, but it is not called alimony. This agreement was not incorporated or reviewed by a judge and as such remains a “contract.” She is suing me for breach of contract after I notified her that she would not be receiving any further payments until further notice due to my undergoing cancer treatments. There was never a fuss about it. In my opinion, she violated the contract by leaving the state voiding my specific visitation rights with my children. How can I be liable for this breach of contract when she breached first? Is there a solution?
Carolyn Answers…
I am very sorry you are undergoing cancer treatments. Try to avoid the stress related to your domestic situation.
A few more facts would help. I don’t know how long the children lived in another state. Was there a substitute visitation plan? Did the contract say anything about notice to you of her intent to move? Does anything in your contract say that the provisions are reciprocal consideration? Did you ask the court for assistance when she moved your children? Are you deducting the family support as tax-deductible alimony? How long do you have to pay family support? Finally, do you have the ability to pay the support given your health? The answers to these questions could provide additional legal remedies for you.
A material breach of a matrimonial contract can relieve you of future performance. You certainly should counterclaim for her material breach. Some of the answers to my questions in the paragraph above affect the likelihood of your success. Also, if there is a tax angle that might be helpful. The tax angle may have to be utilized before December 31, 2018, when alimony is abolished as deductible. These cases are often difficult to win because the standard for material breach is a high bar.
A big thank you to these two readers for being the first to submit questions through the website!
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Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your unique case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”