Lawyers in Media, PALawyers in Media, PA
Lawyers in Media, PA
Gibson & Perkins, PC | Attorneys at Law
FacebookTwitterGoogle+Linkedin

Call For A Legal Consultation

(610) 565-1708
  • Home
  • Practice Areas
    • Business Law
    • Real Estate Law
    • Personal Injury
    • Legal Malpractice
    • Employment Law
    • Employee Rights
    • Trusts and Estates
    • Landlord Tenant
    • Tax Controversy
    • Civil Appellate
    • Tax Problem Resolution
    • Bankruptcy
    • Divorce
  • Attorneys
    • Edward L. Perkins
    • Walter J. Timby
    • Stephen Loester
    • Paul Fellman
    • Martin J. Pezzner
  • Legal Resources
    • Educational Videos
    • Legal Blog
    • Mobile Apps
    • Publications
  • Reviews
  • Locations
  • Contact Us
    • Pennsylvania Office
    • New Jersey Office
Menu back  
 
January 21, 2019Gibson & Perkins, PC Blog, Legal Malpractice

Legal Malpractice Tip: College Provisions in Property Settlement Agreements

Attorneys practicing family law, and specifically divorce, are familiar with property and marital settlement agreements. Agreements which specifically state that they are to be incorporated but not merged with a divorce decree remain a contract subject to laws applicable to contracts.

Legal Malpractice Tip College Provisions in Property Settlement AgreementsProperty settlement agreements require the same, if not more, care and attention as other contracts during the negotiation and drafting process. Unfortunately, the interpretation and effect of property settlement agreements is often complicated by careless drafting or the attorney’s failure to test certain provisions against hypothetical future applications. This leads to unhappy clients who look to hold the attorney responsible for their frustrated expectations.

Provisions regarding obligations to pay the children’s college expenses can be particularly thorny. Divorces often occur when the children are young and the thought that they will attend college remains a hope. The parents are in no position to guess where the child will attend. Will it be a state school? A private school? What is a state school? Will the child live on or off campus? What if the child defers college until sometime after graduating high school? Side note: it is important to remind your client that, absent an agreement, there is no legal requirement that a parent pay for the child’s college.

Some attorneys attempt to avoid specific obligations by using vague phrases like, “The parties agree to help the children pay for college…” or “The parties agree that they will support the children’s effort and contribute, however, only as they are financially able to do so with no absolute obligation…” The latter was language at issue in Dayhoff v. Constable, 2014 WL 10917068 (Pa. Super. 2014) (not a legal malpractice case). In Dayhoff, the Court found that the parties’ agreement was enforceable despite the fact that the parties agreed that the obligation was not absolute. The Court next considered the parties’ relative financial situations in order to determine each parties’ obligation. Accordingly, even provisions carefully crafted to avoid a concrete obligation can be disregarded.

In the same vein as Dayhoff, the parties in Tuzzato v. Tuzzato, 2015 WL 6550755 (Pa. Super. 2015) (not a legal malpractice case) disagreed over the parties’ college tuition obligations. There, the parties agreed to pay fifty percent of the children’s education expenses for a four-year college program at a “state institution, such as Shippensburg, and not a private school.” A problem arose when the child began attending Pennsylvania State University’s Main Campus. Father argued that Penn State was a private institution and that his obligation was limited to “state institutions”, like Shippensburg, which were members of PASSHE. The Court disagreed and found that “state institution” could include “state related” institutions such as Penn State. The Court then considered extrinsic evidence and held that Penn State was a “state institution” pursuant to the parties’ agreement.

The lesson we can learn from these cases is to slow down when drafting property settlement agreements. Walk through some of the more complicated or speculative provisions with your client. If you think there might be problems interpreting the provision in the future regardless of how well you draft it, put this in writing and advise your client. Let your client make the decision whether to keep the provision or not.

Paul Fellman
Attorney at Law
Gibson & Perkins, P.C.
100 West Sixth Street, Suite 204
Media, PA 19063
610.565.1708 ext. 106
pfellman@gibperk.com

Tweet
Share1
Pin
1 Shares
Share this post
FacebookTwitterGoogle+LinkedInPinterest
About the author

Gibson & Perkins, PC

Related posts
Estate Planning for the Practicing Accountant Webinar
Estate Planning for the Practicing Accountant Webinar – September 12
August 29, 2019
Selling Your Small Business
Selling Your Small Business – Maximizing Value and Efficiency Webinar – September 26
August 29, 2019
Ethics Quizzo Webinar – August 15
Ethics Quizzo Webinar – August 15
July 30, 2019
Understanding Section 199A Self Study CPE Course
Understanding Section 199A Self Study CPE Course
July 18, 2019
Special Needs Trusts Webinar
Special Needs Trusts Webinar – July 25
July 11, 2019
Will Contests Webinar on June 11
Will Contests Webinar on June 11
May 24, 2019
video vault gp

Contact Our Attorneys

Download Our Free Legal Apps

Mobile Apps

Client Reviews

stars
“I highly Recommend Gibson & Perkins. I have used their services for approximately 6 years now and been through a few cases together with very positive outcomes. Personally, I have used Paul Fellman and Walter Timby on those occasions. Both, as a team & separately these Attorneys were wonderful to work with and easily accessible to reach if I had any questions. Professionalism is the word that comes to mind to describe the firm, as a whole. Always completely prepared for any surprises that may pop up during a trial. They were well versed on all pertinent info pertaining to each case. As I client, I always felt I was an integral part of the team, not an after-thought, that had to be brought up to speed a half hour before the trial started. I could not recommend this firm and Mr. Fellman and Mr. Timby any higher.”
– Maria Twining

Read More Reviews

THIS IS AN ADVERTISEMENT. These materials have been prepared by Gibson & Perkins, PC for general informational purposes only and are not intended and should not be construed as legal advice or legal opinion on any specific facts or circumstances. Every case is unique. The information contained in this website is not intended to create, and receipt of it does not constitute, a lawyer-client relationship nor is it intended to substitute for the advice of an attorney. Website Users should not act upon this information without seeking professional legal counsel. This website constitutes Attorney Advertising. | Privacy Policy | Sitemap | © 2019 Gibson & Perkins, PC.