On April 12, 2017, Gov. Andrew Cuomo signed into law the Excelsior Scholarship program, which has opened the door to a “free college education” to those families in need, earning $100,000 or less and with total family earnings increasing to $125,000 within two years.

However, the law does not define the term ‘family’ and instead, relies upon the definition in the Free Application for Federal Student Aid (FAFSA) form.

Under the language of FAFSA, your married parents are separated if “they are considered legally separated by a state, or if they are legally married but have chosen to live separate lives, including living in separate households, as though they were not married….If your parents are divorced or separated and don’t live together, answer the questions about the parent with whom you lived more during the past 12 months. If you lived the same amount of time with each divorced or separated parent, give answers about the parent who provided more financial support during the past 12 months or during the most recent 12 months that you actually received support from a parent.”

This provision would appear to allow applicants to game the system where the ex-spouses have a considerable income disparity. If the student resides with the lower-income parent, he or she can cite that parent’s income as grounds for financial assistance. The higher-income parent could therefore avoid responsibility for the child’s college tuition, shifting that burden to the taxpayers.

While there should be no doubt as to the good intentions underlying the Free College Education plan, New York now has a law that could result in the affluent avoiding paying their fair share of their children’s college tuition.

Yoni Levoritz
The writer is a family law and
matrimonial attorney in New York