In a recent case, the son sued his father for payment of son’s college expenses. In re the Marriage of Spircoff, 2011 Il App (1st) 103189. The court held that because the parents’ divorce judgment stated that “each of the parties shall contribute to college expenses of their child” the son had standing to sue his parents as a third-party beneficiary of a contract between his parents. The good news is that this case has been abolished by the legislature when the amendments to the divorce law took effect on January 1, 2016.
The Illinois Dissolution and Dissolution of Marriage Act of 2015 makes it clear that a child does not have a standing as a third-party beneficiary to the parties’ divorce settlement agreement or judgment of the court, and cannot file a petition for contribution to educational expenses. Only the parents have a right to sue each other and ask for contribution to their child’s college expenses, unless one of the parents is dead or under legal disability. In those limited situations, the child may be able to sue one of his parents on behalf of the other.
When you get divorced, your judgment for dissolution of marriage controls what will happen years down the road. Many parents plan that their children will attend college and many address college expenses in their agreements when divorcing. Here are several issues related to your children’s college education you should know if you are going through or contemplating a divorce:
1. Court has authority to order college expense contribution even if the children are not old enough for college.
If the parents are married there is no law saying they must pay for their children’s college. However, if the parties are divorced or divorcing, current law in Illinois states that the Court may order either one or both parties or the estate of the deceased parent pay for the children’s college expenses. 750 ILCS 5/513. Such educational expenses include room, board, dues, tuition, transportation, books, fees, registration, and application costs, medical expenses, medical insurance, dental expenses, and living expenses during the school year and recess. The 2016 amendments to the divorce laws cap the educational expenses at the amount of tuition and fees at the University of Illinois at Urbana-Champaign for the same academic year. Therefore, if your child wants to go to an expensive out-of-state college, absent parents’ agreement to fully pay for college, the child may have to figure out how to cover any expenses which are above what he or she would spend at the Urbana-Champaign.
2. The courts look at your financial resources and not just income to award educational expenses.
The statute says the court “shall consider all relevant factors …, including: the financial resources of both parents, the standard of living the child would have enjoyed if the parents were still married, the financial resources of the child, and the child’s academic performance.” 750 ILCS 5/513. The law provides that the court cannot award any college expenses if the child fails to maintain a cumulative “C” grade point average. However, the law also provides that the court will still award college contribution from the parents to the child who becomes pregnant, enlists in the armed forces or becomes incarcerated while in college.
3. Pitfalls of reserving the issue of college expenses in the agreement.
If you choose to reserve the issue of college expenses in your settlement agreement, you should file a petition for college expense allocation as soon as your child knows where she will go to college. Under the current law, any obligation to pay for college is retroactive only to the date of filing a petition. Let’s say you wait until the second year of college to file a petition, the court will only address the second year expenses that remain unpaid and will disregard what you have already paid before filing a petition. Such is true even if your ex-spouse could have contributed to your child’s college expenses but unreasonably refused to do so.
4. What happens if your agreement says that each parent “shall” contribute to college expenses?
Often times, parents agree in their divorce agreement that they will contribute to college expenses of their children. The agreement can state that each parent shall contribute 50-50 or it could be vaguer and say only that “each parent shall contribute based on their ability to pay.” In any case, such mandatory language creates a contractual obligation of the parties to pay for college even if the contribution is not sought until after child has already graduated from college.
In re the marriage of Koenig, the mother filed a petition for reimbursement of approximately $257,000 that she and the parties’ daughter incurred for college and law school expenses. 2012 Il App (2d) 110503. The parties’ Judgment provided that “Husband and Wife shall pay for university, college or post-graduate school education for Tiffany herein based on their respective financial abilities and resources at said time.” The appellate court held that because the agreement obligated each parent to pay and not merely reserved the issue, the father was responsible to reimburse a portion of expenses paid by the mother even though the mother did not file a petition until after Tiffany had already graduated.
The current law reaffirms the Koenig case and states that “the right to enforce a prior obligation to pay may be enforced either before or after the obligation is incurred.” See 750 ILCS 5/513(k). The court’s authority to order educational expenses is limited, however, to children under the age of 23, and for good cause shown it can be extended to age 25. It means that unless your divorce agreement clearly states that you and your spouse agree to contribute to your child’s graduate school, the court will not order either of you to fund education beyond undergraduate degree or its equivalent.
If you are going through divorce and your children are not yet college age, you should make sure that you clearly understand what you are signing up for and discuss college expense contribution with your attorney. And if you reserved the issue during your divorce, don’t wait until the children graduate to bring your petition to court or you will be out of luck.
