Case Study: Are Illinois Orders to Pay College Expenses Still Constitutional?

In Illinois, divorced and never-married parents may have an obligation to contribute to post-high school expenses for their children once they emancipate, or “age out” of being a minor child under the law.  This typically happens when the child turns 18 or graduates from high school, whichever happens last. At that point, many children will go on to attend college, trade schools, and various other types of career training.  Section 513(a) of the Illinois Marriage and Dissolution of Marriage Act is the relevant statute on this issue, and it provides:


“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.”


The law goes on to state that the judge has authority to order payment of post-high school educational expenses, including tuition and fees (as long as they do not exceed the cost of in-state tuition and fees at the University of Illinois at Urbana-Champaign for the same academic year), housing expenses, the child’s medical expenses, including insurance and dental expenses, “reasonable living expenses,” and books and necessary other supplies.


For the 2017-2018 school year, the overall cost to attend the University of Illinois at Urbana-Champaign for a full-time on-campus undergraduate student was approximately $30,700, and over $35,000 for programs such as Engineering, Business, and Chem/Life Sciences.  Clearly, this statutory cap on parents’ obligations to pay for college is still extremely high, and completely unaffordable for many people.


A judge in DuPage County recently ruled that this law requiring divorced or never-married parents to pay for their children’s college educations is unconstitutional because it denies equal protection to parents.  The issue of constitutionality of Section 513 was before the Illinois Supreme Court nearly 40 years ago in Kujawinski v. Kujawinski. In that case, the Supreme Court ruled that the law was constitutional, noting that children of divorced parents face hardships that others don’t:


“In a normal household, parents * * * direct their children as to when and how they should work or study. That is on the assumption of a normal family relationship, where parental love and moral obligation dictate what is best for the children. Under such circumstances, natural pride in the attainments of a child * * * would demand of parents provision for a college education, even at a sacrifice. When we turn to divorced parents a disrupted family society cannot count on normal protection for the child, and it is here that equity takes control to mitigate the hardship that may befall children of divorced parents.”


However, our society has clearly changed over the last 40 years. The judge in the recent DuPage County case pointed out that even Supreme Court Justice Sandra Day O’Connor noted back in 2000 that “The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.”  Troxel v. Granville, 537 U.S. 57 (2000).


The recent ruling noted that Section 513 “does not contain any provisions for the input, advice or consent of either parent as to the choice of school” that the child attends. Further, the trial court found that the law is archaic and “cannot reasonably be construed in a manner that would preserve its validity[.]”


The factual background for this recent case is as follows. Two never-married parents had a daughter together. The child turned 18 and finished high school. The mother then filed a petition requesting that the father contribute to the daughter’s college expenses.


The daughter was interested in studying marine biology, and her father had encouraged this by paying for SCUBA classes and taking her on diving excursions. However, the mother and the daughter did not consult with him about where she would attend college.  Instead, they decided that she would attend Florida Gulf Coast University. This particular school doesn’t even offer a degree in marine biology.  It is, however, ranked #21 on the list of “Top Party Schools of Florida.”


The father had offered to pay 100% of his daughter’s college expenses if she would transfer to Scripps Institute of Oceanography in San Diego, or the University of Hawaii.  Both of those schools have marine biology degree programs and “excellent reputations.” However, both the mother and daughter refused his offer.


The issue went to a hearing before the court, and each of the parents were ordered to contribute 40% to Daughter’s college expenses. The court ruled that the daughter would be responsible for the remaining 20% through employment, obtaining grants and scholarships, and work-study. However, the daughter never applied for financial aid or worked a job. Instead, her mother paid 60% of the cost.


The father then filed a motion to terminate his obligation to contribute to college because the daughter had failed to comply with the court’s orders.  This motion was denied.


Next, the father filed a motion requesting that the court find Section 513 of the Illinois Marriage and Dissolution of Marriage Act unconstitutional. The Attorney General of the State of Illinois declined to intervene.


The motion requested that the court declare Section 513 unconstitutional because it requires parents who have been divorced or who have never been married to pay their children’s college expenses, yet there is no such requirement for married parents.  He argued that this law creates two classes of children – those with married parents and those without. He also argued that he was denied the opportunity to make decisions about where his daughter would attend college, which married parents and some single parents are able to do. He argued the law violated the equal protection clause of the Fourteenth Amendment, which states:


“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


In the pending case, it’s worth noting that the father did not argue against being required to pay for his daughter’s college.  Instead, he argued that he was not given any input about her decision where to attend and what he would have to pay. He argued that married parents have parental decision making about college contribution, but for someone like him, who is not married, he doesn’t, which is a violation of equal protection.


Ultimately, the trial court ruled that “section 513 does not permit divorced or never married parents the same input and ability to educate their children as is afforded to married…parents… [and] there is no rational basis for this difference.”  In its ruling, the court emphasized just how much the “typical” family in our country has changed, pointing out that married two-parent families now make up less than 50%. In fact, in 2014, unmarried women account for about 40% of the U.S. birthrate; in 2011 the divorce statistic was 46%; and just 46% of children live in two-parent homes. So, the Illinois Supreme Court’s ruling in the Kujawinski case in 1978 assumed a very different “typical” family than what the actual average family in the U.S. looks like today.  This ruling is presently being appealed.


Depending on what happens on appeal, this recent ruling may have a big impact on cases involving a dispute over contribution to college expenses moving forward. If you want to discuss your options with an experienced and knowledgeable attorney, please contact us today for a free consultation.

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