Posted by Nydia Streets of Streets Law in Florida Divorce
Normally, parents in Florida are not required to fund college education. A divorce judgment or child support order cannot, therefore, force a parent to promise to pay college tuition or expenses for a child. But parties are allowed to agree to do this. Enforcement of payments to a college savings plan was an issue in the case Shernoff v. Shernoff, 4D2023-1704 (Fla. 4th DCA August 28, 2024).
The parties’ marital settlement agreement stated:
Parties agree to maintain the 529 Savings plans that are already created with Merrill Lynch. Wife will continue to put money into each account during the three-year alimony term. Upon termination of alimony, the parties agree to place $1,000.00 into each account per month and equally (50/50) split the contribution with each party being responsible for a contribution of $500 per month. Parties agree to equally (50/50) split the contribution with each party being responsible for a contribution of $500 per month. Parties agree to equally (50/50) share the cost for any expenses not covered by the 529 plan, which include but are not limited to room and board. The parties further agree that contribution amounts can be adjusted and discussed any time but will be equal following the alimony period.
Later, the parties signed an addendum which stated “[Former Wife] will not be responsible for any 529 contributions following the alimony period. Any contributions made will be at her discretion if necessary.” The former wife argued this was because she paid a lump sum into the account and had essentially prefunded her share. The addendum did not mention the former husband’s contribution. The former wife sought to have the former husband held in contempt because he stopped contributing $500 per month to the 529 plan. The former husband did not want to deposit into that account because it the account was in the former wife’s name. The former wife agreed the former husband could deposit into a separate prepaid college plan instead of the 529 plan, but the parties disputed the amount to be deposited.
The trial court determined it could not hold the former husband in contempt of an outside agreement reached by the parties which was not ratified by the court. The court also concluded the addendum relieved the former husband of his obligation to contribute to the college savings accounts. The former wife appealed. The appellate court held “We conclude the circuit court did not err when it denied the motion to hold the Former Husband in contempt. But we disagree with the circuit court’s interpretation of the alimony addendum. The testimony revealed Former Wife prefunded her contributions to the 529 plans, which allegedly led to the execution of the alimony addendum. Both parties acknowledged Former Husband had a continuing obligation to fund a college savings account. The circuit court should have considered this evidence, much of it undisputed, when it determined Former Husband no longer had a duty to fund the 529 plans. On remand, the circuit court must consider this evidence, including Former Wife’s contribution to the 529 plans, before determining whether to grant Former Wife’s enforcement motion.”
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