For most legal purposes, a child is considered an adult at age 18. He can vote. He can serve in the military. He can enter into a legally-enforceable contract. He can get married without the consent of his parents. And if he wants his parents to pay for his college education, his parents would be well within their rights to tell junior that he’s a grown man now, and he has to pay his own way. Provided the parents are married to each other, that is.
Under Illinois law, the Court has the authority to order parents who are either divorced or were never married to pay a portion of the cost of junior’s college education. But why should divorced or never-married parents have legal obligations that married couples don’t have? Doesn’t that seem unfair? It sure seems that way. In fact, in the case of Webb v. Sowell, the South Carolina Supreme Court held that treating unmarried parents differently from married parents is an unconstitutional violation of the Equal Protection Clause. The Pennsylvania Supreme Court thinks so, too. However, such constitutional challenges to the law in Illinois have failed.
As a result, disputes regarding how much each parent owes for junior’s college education are common in Illinois. Under 750 ILCS 5/513, either parent may file a petition for the court to determine how much each party should be contributing. In cases where the parties were divorced long before the thought of paying for college ever occupied a prominent place in either party’s mind, judgments of dissolution of marriage often contain generic language stating either that the parties “shall contribute to the cost of college in accordance with the provisions of the Illinois Marriage and Dissolution of Marriage Act,” or state that “the parties’ obligations to contribute to the cost of college are reserved.” While in either case it would seem that the court is putting off any decision on the issue until some point in the future, the fact of the matter is that there is a drastic difference in the legal meaning of “shall contribute” as opposed to “reserved.”
In the case of Marriage of Petersen, the parties had three children, and the wife filed a petition for the court to allocate the costs of their college educations. At the time of filing, the oldest child had already graduated from college, the middle child had completed a couple years of college, and the youngest was about to enroll in a few months. The judgment of dissolution of marriage stated that “the court expressly reserves the issue of each party’s obligation to contribute” to college expenses. At trial, the court ordered the husband to pay 75% of past, present, and future college expenses for the three kids. In hard-dollar figures, he was ordered to pay over $227,000 for past college expenses and over $46,000 for current college expenses. On appeal Illinois Supreme Court reversed the trial court.
The Illinois Supreme Court held that because the issue had been “reserved,” the trial court could not retroactively impose an obligation on the husband for college expenses which were incurred prior to the filing of the wife’s petition to allocate those expenses. The Court held that because the issue had been “reserved,” the trial court only allocate expenses incurred subsequent to the filing of the wife’s petition.
Based upon the Petersen case, we strongly encourage our clients who have a child in college review their judgments of dissolution of marriage right away. If the judgment reserves the issue how much you and your ex should be paying, and you think your ex should be paying more than he or she is, the right time to file a petition with the court is probably right now.
If, on the other hand, your judgment of dissolution of marriage provides that each of the parties “shall contribute” to the cost of the children’s college education, you can breathe a sigh of relief. In the case of the Marriage of Spircoff, the Illinois Supreme Court drew a sharp distinction between the meaning of the words “shall contribute” and “reserved.” In that case, the judgment stated “each of the parties shall contribute to the trade school or college and professional school education expenses of their child in accordance with Section 513 of the Illinois Marriage and Dissolution of Marriage Act.” Because the judgment imposed an affirmative obligation on the parents, the obligation to pay for college could be enforced retroactively. The court had the authority to go back and assign responsibility for payment of college expenses incurred prior to filing a petition to allocate them. In other words, if Mr. Petersen’s judgment of dissolution of marriage had stated that he “shall pay” for college, his wallet would be about $227,000 lighter right now.
In any event, it is good practice to review your judgment of dissolution of marriage as part of your child’s college application process, and contact a family law attorney if you have any questions.