If the Cook County Court orders, you must contribute to your children’s college expenses after a divorce. The Illinois Marriage and Dissolution of Marriage Act 750 ILCS 513 says that either or both of the parents can be ordered to pay “educational expenses for any child” incurred no later than the child’s 23rd birthday, and in no event later than the 25th birthday.
The Illinois statute requires that parents must make contributions towards their children’s college considering these following factors:
- The present and future financial resources of both parties to meet their needs, including but not limited to, saving for retirement.
- The standard of living the child would have enjoyed had the marriage not been dissolved.
- The financial resources of the child.
- The child’s academic performance
These four factors are also what courts use to consider a modification of a previously entered order to pay educational expenses.
Illinois law defines “educational expenses” as the actual tuition and fees, on or off-campus housing expenses, medical and dental insurance and expenses, reasonable living expenses, and books and supplies. As for the tuition and fees and the housing expenses, they would only be your responsibility up to the amount these expenses would cost at the University of Illinois at Urbana-Champaign. Of course, your child does not have to go to the University of Illinois for college, but that is the school the law uses as a “benchmark” for the maximum of what the parents would be financially responsible for.
Beyond the University of Illinois in-state tuition price limit, “[t]he court should not order a party to pay more for educational expenses than he or she can afford.” In re Support of Pearson, 111 Ill. 2d 545, 551 (1986))
The court can require both parents to complete a Free Application for Federal Student Aid (FAFSA) to try to mitigate the costs.
The court can require a parent to pay for five (5) college applications and two (2) college admissions tests.
The child must maintain a “C” average if the court is to continue obligating the parent to pay for the child’s college expenses.
If the parents have a 529 college savings account, that account will not be divided as a marital asset and will be applied for the benefit of the child.
There is a question as to what college expenses a parent can ask another parent to pay for. After all, a filed motion for college expenses will often not be heard for many months. So, can a parent expect to be reimbursed for a portion of the child’s college expenses that they paid for while waiting on a ruling from the judge?
If the divorce is not yet finalized, the court can still allocate college expenses. If “most of the children’s educational expenses…predated the petition for dissolution and could have been properly considered during the pendancy of the suit contemporaneously with other ancillary issues such as the division of marital property.” In re Marriage of Chee, 2011 IL App (1st) 102797
Expenses not specifically allocated between the parents in the final Marital Settlement Agreement shall be “in the nature of a modification of child support under section 510. Therefore, [courts shall not order] payment of college expenses that predate the notice of filing as provided in section 510(a)” Petersen v. Petersen, 932 N.E.2d 1184, 1190 (Ill. App. Ct. 2010)
In my personal experience, the cost of college is often prohibitive for many people and judges are loath to make large awards if the parents aren’t completely able to pay such an award without a dramatic impact on their financial well being. Judges also put a great deal of responsibility on the child’s effort to contribute (even though the judge has no jurisdiction over the child, directly, as the child is now an adult over the age of 18).
If the child is “college material,” simply gather the child’s academic history and present that evidence to the court in a formal matter.
If a child is not “college material,” and one parent insists that the child is, this issue is best resolved by requesting a pretrial within the judge’s chambers. This creates an opportunity to disclose unpleasant facts about the child’s academic potential without aggravating the other party or the child.
Remind the court that “[w]hile the court is authorized to order the payment of a child’s college expenses, it is not required to do so.” In re Thurmond, 306 Ill. App. 3d 828, 834 (Ill. App. Ct. 1999)
Ordering a parent to pay college expenses is optional for the court NOT mandatory.
“A child does not have an absolute right to a college education. However, a trial court may order the payment of postsecondary educational expenses, including college, professional, or other training.” People v. Keller, 382 Ill. App. 3d 872, 878 (Ill. App. Ct. 2008)(citations and quotations omitted)
These situations are very difficult because the solution to paying for college expenses should be cooperation and agreement not formal litigation which just creates additional costs that could have been applied to the college expenses in the first place.
Most divorcing parents simply agree to the terms under which they will pay for their children’s college expenses. Those agreements will be upheld when the children finally go to college.
“Illinois courts look with favor upon agreements that determine the essential issues of property division, maintenance, and the custody, support, and education of the children…It is generally held that if and when such property settlement agreements are embodied in the divorce decree itself, its terms will not thereafter be modified under any circumstances, and a trial court is without authority to modify it or enter a decree contrary to it.” In re Marriage of Holderrieth, 181 Ill. App. 3d 199, 206 (1989)
If The Parents Were Never Married, Do The Parents Have To Pay For The Child’s College?
Yes. “[S]ection 513 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill.Rev.Stat.1985, ch. 40, par. 513) is applicable to a proceeding brought under the Illinois Parentage Act of 1984 (Parentage Act) (Ill.Rev.Stat.1985, ch. 40, par. 2501 et seq.), and a court may provide for the education and maintenance of a nonminor child born to unmarried parents” People ex rel. Sussen v. Keller, 892 NE 2d 11 – Ill: Appellate Court, 4th Dist. 2008
If parents owe a responsibility to their children whether they were ever married or not. Any section of the Illinois Marriage and Dissolution of Marriage Act that is about children applies to ALL children. Section 513, regarding college expenses, applies to all children.
“The State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded legitimate children; once the State posits a judicially enforceable right on behalf of children to needed support from their natural fathers, there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married his or her mother. For a State to do so is illogical and unjust.” Rawles v. Hartman, 172 Ill. App. 3d 931, 937 (Ill. App. Ct. 1988)
Reserving The College Expenses For Later
Most divorcing couples do NOT address college expenses in the Marital Settlement Agreement. Not all children go to college. The children that do go to college go to colleges with expenses that cost anywhere from zero to $ 75,000 a year. There is no point in contracting when so much is unknown.
“[Reserving college expenses] is not unusual in divorce cases. Children are often too young, at the time of a divorce, to properly anticipate whether college expenses will be needed.” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 324 (Ill. 2011)
Matters that are reserved can be invoked at any time. But, it wouldn’t make sense to invoke a reserved contribution to college expenses when a child is only 14. In re Marriage of Albiani, 159 Ill. App. 3d 519, 527 (Ill. App. Ct. 1987)
Reserving an issue is totally discretionary for any court on any issue if the court deems the reservation appropriate.
“[B]y “reserving” the issue, [a] court [i]s exercising its discretion to not make an award at that time, even though the court had personal jurisdiction over both parents and had the authority to make an award…[T]he reservation serves as a discretionary decision to not make any award at that time.” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 325 (Ill. 2011)
In addition to a court refusing to award college expenses until the issue is ripe, a request for contribution to college expenses cannot be done retroactively. Courts have “consistently regarded the actions taken pursuant to reservations clauses to be modifications under section 510 subject to the prohibition of retroactive support. ” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 326 (Ill. 2011)
This means that there is only a short window to file a motion for contribution to college expenses if the college expense issue was reserved (which it is for most Illinois divorces). That window to file a petition for contribution to college expenses is probably sometime between the admission of the child to college and the when the first payment is due. That’s just a few months!
Can The Child Go To Court To Ask The Parents To Pay For Their College?
Typically, children “[lack] standing…to seek enforcement of the provisions of the judgment for divorce to which [they are] not a party.” In re Marriage of Garrison, 99 Ill. App. 3d 717, 721 (1981).
A child cannot file a motion to ask one or both parents to pay for their college expenses in Illinois if college expenses were decided in trial. Only the parents have the right to bring that action into court against the other parent.
“The child is not a third party beneficiary to the settlement agreement or judgment between the parties after trial and is not entitled to file a petition for contribution. If the parties’ settlement agreement describes the manner in which a child’s educational expenses will be paid, or if the court makes an award pursuant to this Section, then the parties are responsible pursuant to that agreement or award for the child’s educational expenses, but in no event shall the court consider the child a third party beneficiary of that provision. In the event of the death or legal disability of a party who would have the right to file a petition for contribution, the child of the party may file a petition for contribution.” 750 ILCS 5/513(i) (West 2018).
If your children have been accepted to college or university, you need to know how it will be paid. Contact my Chicago, Illinois law firm and let’s begin the conversation as to how college will be paid for.
