Posted on October 2, 2021

Modifying College Contribution Requirements After An Illinois Divorce

Illinois is a rare state in that it can require parents to provide for their children’s college expenses past the age of 18 through their Marital Settlement Agreement or via a Judgment from an Illinois divorce judge. Things change as children approach college and it’s often necessary to renegotiate or relitigate each parents obligation to their children’s college expenses as the children age.

Reserving College Contribution Requirements In An Illinois Divorce

Younger parents are so far from their children entering college that they simply reserve the obligation to pay for their children’s college to a future date.

When parties agree to reserve the college contribution their Marital Settlement Agreement will have simple language such as “Upon entry of the Judgment Of Dissolution Of Marriage the parties agree that the issue of their contributions to each child’s post-secondary or college education, pursuant to 750 ILCS 5/513, be reserved.”

If the issue of college expenses is reserved in an Illinois divorce, there is no need to modify college contribution requirements because there is no requirement either ordered or agreed. College contributions have yet to be determined in these cases.

When college finally comes around for the oldest child, the parties can come to a written or oral agreement regarding who will pay for what during the child’s college tenure. Alternatively, either parent can petition the court to determine who will pay for what for the first child and any other children who may also go to college eventually.

“The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the educational expenses of any child of the parties. Unless otherwise agreed to by the parties, all educational expenses which are the subject of a petition brought pursuant to this Section shall be incurred no later than the student’s 23rd birthday, except for good cause shown, but in no event later than the child’s 25th birthday.” 750 ILCS 5/513

The children are not off the hook from their responsibility to contribute to their own college expenses. Children must apply for financial aid.

“Regardless of whether an award has been made under subsection (a), the court may require both parties and the child to complete the Free Application for Federal Student Aid (FAFSA) and other financial aid forms and to submit any form of that type prior to the designated submission deadline for the form.” 750 ILCS 5/513(b)

The court will then determine which parent will be responsible for which expense based on the following:

“The present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement.(2) The standard of living the child would have enjoyed had the marriage not been dissolved.(3) The financial resources of the child.(4) The child’s academic performance.” 750 ILCS 5/513(j)

It’s usually not the split of the expenses that brings people to court but the level of expenses. One parent will be supportive of a middling student who wants to go to an expensive school while another parent is less supportive/more realistic about the return on investment from that particular school.

This turns one parent into the child’s hero and the other parent into unsupportive monster. Well, the monster may still have to pay because “it is well settled that this obligation to contribute to educational expenses is not conditioned upon a continued good relationship between parent and child or upon obtaining prior consent from the supporting parent.” In re Marriage of Sreenan, 81 Ill. App. 3d 1025, 1029 (Ill. App. Ct. 1980)

In Illinois no parent will be responsible for a school expense which is higher than in-state tuition at the University of Illinois at Champaign-Urbana (my law school alma mater).

“Educational expenses may include, but shall not be limited to, the following:(1) except for good cause shown, the actual cost of the child’s post-secondary expenses, including tuition and fees, provided that the cost for tuition and fees does not exceed the amount of in-state tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year” 750 ILCS 5/513(d)

Either parent can subsequently petition the court to modify their college contribution based on their own recent bad fortune or their ex-spouse’s recent good fortune.

“[P]ursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary” 750 ILCS 5/513

Contracting For College Contributions In An Illinois Marital Settlement Agreement

People often get divorced very close to their children going to college and, thus, have a good idea of their finances and their children’s capacity to attend a particular kind of school. The divorcing parents then contract for how they will divide the college expenses between themselves and the child.

“It is well established that the parties in a dissolution proceeding may voluntarily settle their property interests….Further, 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. A court is unable to set aside such a settlement agreement, except as it pertains to children, unless there is clear and convincing evidence that the agreement was entered as the result of coercion, fraud or duress, or the agreement is contrary to public policy or morals” In re Marriage of Holderrieth, 181 Ill. App. 3d 199, 206 (Ill. App. Ct. 1989)

It is incredibly difficult to adequately contract for college contribution terms when parents have no idea what your child’s SAT, GPA or post-high school wishes will be. Parents don’t even know for certain that their children will attend college. Furthermore, parents have no idea what college will cost in the future and what financial aid, grants or scholarships a child will have access to.

If you agree with the terms for college contribution as laid out in your Marital Settlement Agreement, then you can go to court to enforce those terms.

You should politely explain to the court that “[w]hat is involved here is simply a petition to enforce a settlement agreement which had previously been incorporated into the dissolution judgment of the court.” In re Marriage of Houston, 150 Ill. App. 3d 608, 614 (Ill. App. Ct. 1986)

If, however, you subsequently disagree with the terms for college contribution as laid out in your Marital Settlement Agreement, you can file a motion to modify those terms. The court is probably going to allow a modification despite the Marital Settlement Agreement being a contract.

“It is well settled that orders entered pursuant to section 513 are always modifiable.” In re Marriage of Loffredi, 232 Ill. App. 3d 709, 712 (Ill. App. Ct. 1992)

“[S]ection 513 of the Act grants the circuit court the discretion to extend a parent’s obligation to support his or her children beyond their minority when that support is for educational purposes.” Koenig v. Koenig, 360 Ill. Dec. 652, 655 (Ill. App. Ct. 2012)

“These orders remain modifiable because a provision for payment of college expenses is considered in the nature of child support rather than a property settlement.” Koenig v. Koenig, 360 Ill. Dec. 652, 655-56 (Ill. App. Ct. 2012)

An Illinois divorce court likely won’t even care how detailed you were in your original contract terms because they will reset them anyways.

“[I]t is inconsequential that the settlement agreement did not set a dollar amount or some basis for determining contributions, since contributions could always be settled by the trial court.” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 325 (Ill. 2011)

There is one thing that an Illinois divorce court won’t let you modify: the terms of payment retroactively.

Modifying College Contributions Can Never Be Retroactive In Illinois

If you need your college contributions modifies, you need to ask immediately or you will have lost the opportunity to modify any obligation before the date of filing your motion for modification

“Except as otherwise provided… the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a)

“Under the plain language of the statute, a retroactive modification is limited to only those installments that date back to the filing date of the petition for modification. This insures that the respondent is put on notice prior to any change being made with respect to the original child support and expense obligations.” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 325 (Ill. 2011)

This prohibition on retroactive modifications includes parents who demand payment for expenses they covered before the college contribution was defined.

If there is no definite agreement or order than the non-paying parent “had no concrete obligation to provide for educational expenses under the decree. [If the paying parent] sought to change the status quo between the parties and alter [the non-paying parent’s] obligations under the decree. That action brought [the paying parent] within the purview of section 510 [which governs modification], which requires only a showing of a “substantial change in circumstances.” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 324 (Ill. 2011)

“Section 510 provides the statutory framework for modifications, depending on the issue for which the modification is sought.  Section 510 also states that modifications are not retroactive.” In re Marriage of Petersen v. Petersen, 353 Ill. Dec. 320, 323 (Ill. 2011)

Modifications To College Contribution Will Include The Income of New Spouses

Generally, the philosophy of an Illinois divorce court is “we already have one divorce on our hands. We don’t want two.” So, the Illinois divorce courts leave new spouse almost entirely alone.

While child support and maintenance will never be set based off of the income of a new spouse, college contributions might.

“[I]t is more equitable that the trial court be presented with the complete financial circumstances of each party so that it may be able to reach a fairer and more just determination….This may include that parent’s income, her property and investment holdings, as well as money or property that could be available to her through her new spouse.” In re Marriage of Drysch, 732 NE 2d 125 – Ill: Appellate Court, 2nd Dist. 2000

College expenses are hard enough to pay when you have a parent who will actually work with you. They’re almost impossible when you have a parent who actively works against you. Contact my Chicago, Illinois family law firm to learn more about what you’re supposed to pay and what the other parent is supposed to pay as you wrap up the last (and most expensive) part of supporting your child, college.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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