Going through a divorce is never easy, especially when there are children involved. Some parents mistakenly believe that a 529 plan account they set up for their child is the property of the child. But, the 529 plan account owner, not the beneficiary, actually has control of the account.

Unless the divorce decree states otherwise, an ex-spouse who is the 529 plan account owner can legally take distributions for non-qualified expenses and deplete your child’s college fund. They can also change the beneficiary from your child to their stepchild.

Here are some tips on how you can protect your child’s 529 plan savings in the event of a divorce.

Which parent is the 529 plan account owner?

529 plans are considered assets of the account owner, which is often a parent. The 529 plan account owner may change the beneficiary or take a distribution at any time for any reason, whether or not it is in the best interest of the original beneficiary.

In most cases, parents appreciate this flexibility. For example, if a child decides not to go to college or there are leftover funds in the 529 plan account after they graduate, the parent can change the beneficiary to a sibling or other qualifying family member without tax consequences.

If a 529 plan is used to pay for anything other than qualified education expenses, such as tuition, fees, books, supplies and equipment, K-12 tuition or student loan repayments, it is considered a non-qualified distribution. But, only the earnings portion of a non-qualified 529 plan distribution is subject to income tax and a 10% penalty. A 529 plan account owner never pays tax or penalty on the contribution portion of the withdrawal.

Most 529 plans do not allow joint ownership, which means only one parent can be the account owner. In the event of a divorce, one parent could be left with full control over a child’s college savings. The parent who is the account owner could potentially:

  • Take a non-qualified distribution to pay for something other than the beneficiary’s education expenses, such as attorney fees, a new car, a big-screen TV, a vacation, groceries or other living expenses
  • Get remarried and change the 529 plan beneficiary to a child or stepchild with the new spouse
  • Use the 529 plans to further their own education or pay down their own student loans
  • Roll the funds into another 529 plan account with themselves as the named beneficiary

    How to prevent an ex-spouse from taking your child’s 529 plan funds

    Since 529 plans are typically opened for the benefit of a child, they might get overlooked when negotiating a divorce settlement. But, since 529 plan assets technically belong to one of the parents, it is important to include instructions for them in the divorce decree. For example, this may include language stating:

    • Instructions on how the 529 plan funds can be used by either parent
    • The non-account owner parent must be notified before a distribution is taken
    • The 529 plan beneficiary cannot be changed without approval from both parents
    • 529 plan statements must be provided to both parents
    • How future contributions should be handled
    • What to do with any leftover 529 plan funds after the child finishes college
    • What to do if the child decides not to go to college
    • Whether the 529 plan funds count toward a parent’s college support obligations

      Financial aid considerations in divorce

      The child’s custodial parent must complete the Free Application for Federal Student Aid (FAFSA). The custodial parent generally is the parent with whom the child primarily lives with. A 529 plan that is owned by a custodial parent is considered a parental asset on the FAFSA and distributions are ignored. Parent assets can reduce financial aid eligibility by a maximum of 5.64% of their value.

      However, if a 529 plan is owned by a non-custodial parent, the assets are not reported and distributions count as untaxed income to the beneficiary. Distributions from a 529 plan owned by a non-custodial parent can reduce the student’s financial aid eligibility by as much as 50% of the distribution, similar to a distribution from a grandparent-owned 529 plan.

      A non-custodial parent can reduce the negative impact by timing the distribution so that it is not reported on the child’s FAFSA. The funds in the 529 plan can also be rolled over into a 529 plan owned by the custodial parent after the FAFSA is filed.