Staten Island, NY asked in Divorce and Family Law for New York

Q: Will my ex be violating our divorce agreement by cashing out our son's 529 college fund?

My ex is threatening to deplete our son's 529 college fund as he is the account holder. Our divorce agreement states that we are responsible to split the cost of college 50/50 up to a SUNY tuition. The agreement mentions that "the parties agree that they have a college fund for their son, which has been referred to regarding college tuition." The agreement further states that the amount we will have to pay will be "calculated after deducting all monies from loans, scholarships, grants and the application of no more than 25% for each year of the college fund presently maintained by the parties on behalf of the child." Does this language mean that up to 25% of the fund will be used to pay for the college expenses each year and anything over and above that will fall on us to pay 50/50? Can I use this language to prevent him from cashing out the funds and using them for non-qualifying expenses? I am desperate and need to know if I have any legal standing to prevent him from doing this.

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1 Lawyer Answer
Lawrence Allen Weinreich
Lawrence Allen Weinreich
  • Garden City, NY
  • Licensed in New York

A: The answer depends on whether or not the 529 plan was part of the "college fund" that you mention in your question. If it was part of the agreement, your ex will be responsible for 12.5% of the college fund PLUS his 50% of the tuition each year if he depletes the account.

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