By Judge Celia G. Gamrath
Cook County Circuit Court
Under 750 ILCS 5/513, the divorce courthas the authority to order parents to contribute to their child's college expenses after considering the financial resources of both parents and the child, the standard of living the child would have enjoyed had her parents' marriage not dissolved and the child's academic performance.
When a child is young and her parents get a divorce, the court generally reserves the issue of college contribution for later determination.
However, there are perils in waiting too long to seek college contribution from a former spouse and it is prudent to file a petition for contribution before college commences to ensure adequate relief.
Take, for example, Janet Kellogg Petersen, in the 2011 Illinois Supreme Court case of In re Marriage of Petersen, 2011 IL 110984 (Ill. Sept. 22, 2011) .
The Petersens had three children and got divorced in 1999. The oldest child was three years away from starting college, so the judgment for dissolution of marriage expressly reserved the issue of the parties' college contribution.
In 2007, the mother filed a petition to allocate the college expenses of their three children. The couple's oldest son already graduated college, the middle son was in college and the youngest son was about to start. The question was whether the court could order the father, Kevin Petersen, to pay for college expenses retroactively to the date the oldest son began college.
The Illinois Supreme Court held that where a court reserves the issue of college contribution, a petition must be filed before expenses are incurred in order to be recoverable. Otherwise, the court can only go as far back as the date the petition seeking contribution to college expenses is filed. To hold differently would constitute an impermissible modification of a final divorce decree under 750 ILCS 5/510, which allows support obligations to be modified only as to installments accruing after due notice of the filing of a motion for modification.
In contrast, consider the case of a couple whose child is already in college at the time the court enters a divorce judgment. Can the court award contribution to college expenses that predate the filing of a petition?
The case law holds that where there is no final divorce decree and a party seeks college contribution as part of the initial proceeding, the court may order contribution toward expenses incurred during the marriage and prior to the filing of the 5/513 petition. See In re Marriage of Chee, 2011 IL 102797 (1st Dist. July 22, 2011). The difference between Chee and Petersen is that in Chee, there was no final divorce judgment being modified as there was in Petersen.
Rather, the wife in Chee sought contribution as part of her initial pleading and diligently pursued college contribution under 5/513 even after the court declared her marriage void.
In the order declaring the marriage void, the court expressly retained jurisdiction over the parties and their children, and it was deemed a nonfinal order. As such, 5/510 imposed no restriction on how far back the court could go in awarding contribution to college expenses since the order for college contribution did not modify a final judgment, as was the case in Petersen.
Now, take a third example where a judgment does not "reserve" the issue of college contribution, but rather, expressly states that the parties "shall contribute to the trade school or college and professional school education expenses of their child" pursuant to 5/513. Under these circumstances, a child, who is the third-party beneficiary of her parents' marital settlement agreement, has the right to enforce this obligation against her parents and seek contribution for college expenses already incurred. See In re Marriage of Spircoff, 2011 IL 103189 (1st Dist. Oct. 19, 2011).
Note the critical difference in language in Petersen and Spircoff.
When the issue is "reserved," as it was in Petersen, there is no concrete obligation to provide for educational expenses by either party. Hence, any obligation imposed constitutes a modification of the judgment under 5/510. However, when parties agree that they each "shall contribute" to their child's college expenses in the future, this is a concrete enforceable right and allows a party to seek reimbursement for expenses predating the filing of a petition. This includes a child, who is a third-party beneficiary of her parents' marital settlement agreement.
Judges and drafters of marital settlement agreements should be precise and pay attention to the language they choose and the ramifications of enforcement when considering the issue of college contribution under 5/513. If the parties' marital settlement agreement says they "shall" contribute to college expenses, their own child may end up suing them to enforce this provision.
If the language says "reserved," the petitioning party is wise to file her 5/513 motion prior to any college expenses being incurred. Otherwise, the court will lack jurisdiction to order the other party to contribute toward expenses that predate the motion under 5/510.