Divorce and Family Law

As a Chicago divorce lawyer I am intimately aware of the fact that Illinois is in the minority of states which allow a divorce court to obligate a parent to pay a child’s expenses attributable to a  college education or professional or other training after graduation from high school. (Section 513 of the Illinois Marriage and Dissolution of Marriage Act)

The divorce statute provides that educational expenses may include,  but are not limited to, tuition, room and board, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess.

Since the majority of Chicago divorce cases are settled between the parties without the necessity of a trial,  the rights and obligations of each party are expressly set out in a contact called a Marital Settlement Agreement.  The terms of the parties’ agreement are approved by the court when the divorce is granted.

In the case of In Re The Marriage of Peterson, the parties had entered into a settlement agreement which reserved  the issue of each party’s obligation to contribute to the college or other education expenses of the parties’ children pursuant to Section 513 of the divorce statute. The final divorce decree did not specify that each party was obligated to contribute or the amount each was to contribute. The divorce agreement just provided that the issue would be determined at a later date.

The mother filed a lawsuit for college education expenses after the parties’ oldest  child had graduated from college and while the two other children were attending college.  The mother had already paid the children’s expenses through loans and was seeking reimbursement from the father.

The payment of higher education expenses is considered to be in the nature of child support. The divorce law in Illinois provides that only  future obligations to pay child support may be modified.  The obligation cannot be retroactively changed.

The Illinois Supreme Court in Peterson said that since the divorce decree reserved the issue of each party’s obligation to pay college education expenses, the mother was, in effect,  seeking to enforce an obligation which did not exist. The father did not have an obligation to pay because the divorce decree did not impose an obligation upon him  nor had a divorce court.  Since child support payments cannot be modified retroactively, the father could not be ordered to pay expenses before any obligation existed.  Therefore, the mother’s request for reimbursement was denied.

Had the mother petitioned the divorce court prior to the children’s incurring the college expenses, the issue of whether the father had an obligation to contribute to those education expenses, would have already been determined.  It should be noted that, if the divorce court in that case imposed a future obligation upon the father to contribute to the children’s expenses, it could consider the amount of money already expended by the mother in determining how much the father should pay in the future.

If you are considering a divorce in the Chicago area we highly recommend that you consult a Chicago divorce lawyer before you agree to anything. Even the friendliest divorces should have a Chicago divorce attorney representing each party separately. The extra cost of making quality decisions initially will be nominal compared to the potential costs if each party does not have proper guidance in the original process.