By Eric N. Engebretson, Whitham Hebenstreit & Zubek LLP

Engebretson

Effective July 1, 2012, the law regarding a parent’s duty to support a child changed dramatically. Absent certain circumstances, previously a parent was obligated to pay child support until a child was 21 years of age. However, pursuant to the amended versions of I.C. §31-14-11-18 and §31-16-6-6, child support now generally terminates as of a child’s 19th birthday.

At the outset, it is worth noting that a footnote to a recent opinion of the Indiana Court of Appeals raises the possibility that the amended law might be subject to challenge on constitutional grounds, at least as it applies to certain parties. Specifically, in Sexton v. Sexton, 2012 WL 2054859, the Court suggests that the law may be unconstitutional under Article 1, Section 24 of the Indiana Constitution which prohibits ex post facto laws or laws impairing the obligations of existing contracts. However, assuming that the law is upheld, this change represents a relatively significant departure from prior law.

Any party currently receiving support will now need to anticipate that any support he or she is receiving will terminate and/or decrease as of a child’s 19th birthday. Whether or not child support terminates or simply needs to be modified will likely depend upon whether there are any other minor children born of the relationship. Similarly, those parties currently paying support need to be aware that they can seek to have the child support obligation terminated as of a child’s 19th birthday as opposed to waiting until a child is 21. This is particularly important in situations where there is an “in gross” order representing a child support obligation paid on behalf of multiple children. In such a situation the child support payor needs to be aware that he or she can seek a modification of the existing child support obligation earlier than was allowed under prior law so that an appropriate adjustment can be determined in light of the eldest child’s 19th birthday.

This change in the law also affects the time within which both the courts and the parties can address an appropriate division of post-secondary educational expenses. As a general rule, any request for a contribution toward educational expenses must be made prior to a child being emancipated. As a result, in the event a party has a child that will soon be at least 19 years of age and there is not an educational order already in place, it is important that the party desiring such a contribution get a petition seeking such assistance on file prior to the child’s birthday. Failure to do so could result in the petition being dismissed as untimely filed, since once a child is emancipated the court cannot entertain any such request for assistance. As a brief aside, even in the event of an untimely filed petition, the Sexton decision does suggest that trial courts will need to examine disputes on a case-by-case basis to determine whether or not support orders for college-age students implicitly include an educational component even though the support order does not specifically refer to the support as educational.

The one exception to this rule regarding seeking a contribution toward post-secondary educational expenses concerns paternity cases. Pursuant to the amended version of I.C. § 31-14-11-18(b), a child who is receiving child support under an order issued before July 1, 2012, has until they are 21 years of age to file a petition requesting assistance with their educational needs. It is important to note that this “savings clause” does not apply in dissolution cases as the legislature only included it in the amendment to the paternity statute.

Assuming that an order regarding post-secondary educational expenses is in place or can be inferred, clients need to be advised that the actual monetary obligation related to a 19-year-old child may not dramatically change notwithstanding that the obligation to pay child support will now terminate earlier. The reason is that in addition to tuition, room and board, lab fees and supplies, the term “educational expense” has been defined in various cases to include things such as transportation expenses, car insurance, clothing, entertainment, cell phones, entertainment, food, athletic passes, and other incidentals. The term has even been found to include room and board to be paid by one parent to another when a student resides at home while pursuing an education. While these expenses have always been at issue, presumably the fact that child support was previously paid until a child turned 21 at least helped mitigate and/or diffuse certain disputes over them.•