Modifying Adult Child Support

Ordinarily, a parent’s obligation to provide child support ends when the child finishes 12th grade or turns 19, whichever occurs first.  However, divorcing parents can specify in a marital settlement agreement (“MSA”) that one or both parents will pay for the child or children’s college or other expenses, in whole or in part as set forth in the MSA.

When the parents decide to provide for adult child support in an MSA, they should consider whether the support should be modifiable in the event of a change in circumstances, such as a financial hardship to one or both parents.  The Court of Appeal recently reviewed this issue, and decided that adult child support will generally be modifiable, unless the MSA expressly provides that it be non-modifiable.

In Drescher v. Gross (2014), B246494 (Cal.App.Ct. 2d Dist.), the parties divorced in 2001 and agreed in their MSA that each parent would pay equally for the future college expenses of their three minor children.  In 2012, the mother sought to modify the divorce judgment, claiming that she had become permanently disabled with a limited income.  The father’s income had meanwhile increased to over $400,000.  The trial court denied the mother’s request for modification because the MSA did not refer to the obligation as “child support,” which is always modifiable under section 3651 of the Family Code.

The Court of Appeal observed that, unlike the authority to order support for a minor child (or an incapacitated adult child), the court’s authority to order adult child support under section 3587 derives entirely from the parents’ agreement to pay such support.  The Court of Appeal reasoned that the parents may therefore preclude or restrict modification if they include express language for this purpose in the MSA.  Thus, because the parties in the Drescher case did not include such language, the adult child support order was modifiable.