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College Provisions in Marital Settlement Agreements

A New Law in Illinois Could Cost You Tens of Thousands of Dollars: Beware of the College Provision in Your Marital Settlement Agreement

If you are divorced and have college-aged children you may not be able to recover the money you have spent on them from your ex. The cost of waiting to collect college expenses was crystallized by the 2011 Illinois Supreme Court case In re Marriage of Peterson, and has left many Illinois parents who are seeking repayment from a former spouse holding the bag.

Question: "I have two children. I divorced my wife in 2009 while my oldest child was in his first year of college. Now it's 2015, my oldest has graduated and the youngest is getting ready to start college in the fall. I paid $20,000 in tuition for my oldest child, and have paid $5,000 in tuition so far for my youngest child. My divorce decree says that each of us is to contribute to our children's college expenses, but my former spouse has refused to contribute a penny. Is there a way to get her to pay me back?"

Answer: Take a close look at the college expense provision in your final divorce papers. If you agreed to "reserve" the issue of those expenses, a court will not force your former spouse to repay you. Any money you have already spent cannot be recovered.

This harsh reality is a recent development. Prior to 2011, your success or failure in recovering college expenses from a former spouse was largely determined by which judge you happened to appear before. Now, thanks to the Supreme Court's ruling in Peterson, your ability to recover those expenses, if at all, is entirely dependant on the precise wording of your divorce decree.

Look at the two provisions below. Does there appear to be a significant difference between them?

Example I:

"The Court expressly reserves 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 Illinois Marriage and Marriage Dissolution Act."

Example II:

"The Husband and Wife shall pay for university, college or post-graduate school education for [the minor child] herein based on their respective financial abilities and resources at said time."

Most people would say no. However, the provisions differ significantly depending on when a parent decides to ask a court to order a former spouse to pay for college expenses.

The first provision is taken directly from the Peterson case. In that case one spouse attempted to recover from her former spouse a portion of the more than $250,000 she had spent on their children's college educations. The Illinois Supreme Court ruled that she could not recover any of the money that she had already spent because the wording in her divorce papers prevented her from doing so.

Take a close look at Example I again. Neither parent has agreed to contribute any money to their child's college expenses, at least not yet. Instead both parents have agreed to "reserve" the issue with the court. That is, both parents have agreed that the court should decide how much each should pay. However, until the court determines how much each parent should pay, neither parent is obligated to contribute to their children's college expenses. This is because the terms of the provision have no effect until one parent goes to court to enforce them. Thus any expenses one parent incurs prior to asking the court to order the other parent to repay cannot be recovered.

The second provision is taken from the parties' agreement in the Koenig case. Unlike the parties' in Peterson, the parties in Koenig expressly agreed to contribute to their children's college expenses. Even though there is no specific dollar amount set in the above provision, the word "shall" obligates each parent to contribute at least something towards their child's college expenses. The only thing left for the court to determine is how much each parent will be required to pay.

The wording in Example II is significant because each parent's obligation to contribute to college expenses exists as soon as the divorce is entered. Unlike Example I, there is no need for one parent to go to court in order to create that obligation. As a result, college expenses that one parent has already paid can potentially be recovered from the other. So long as the non-paying parent is not destitute, the wording of the second provision allows the court to order repayment of past expenses.

The key to take from this recent development in Illinois law is to act fast. If you are divorced and have college aged children the time to ask for contribution is now. Contact the attorneys of Martoccio & Martoccio today at 630-920-8855, your ability to recover college expenses from your former spouse may depend on it.

New Illinois Maintenance Law

New Maintenance Law in Illinois Effective January 1, 2015

If you are going through a divorce in Illinois where maintenance or spousal support may be ordered you should be aware of the New Maintenance Law that took effect January 1, 2015.

Here is What Is New:

The Formula: The maintenance new law provides Illinois divorce judges with guideline formulas to apply in determining the amount of maintenance that should be paid as well as for the length of time it should be paid. These formulas apply for divorcing couples whose combined gross incomes do not exceed $250,000. Under previous law, Illinois divorce judges ordered maintenance by looking at a list of general factors to consider including a catch all of "any other factor that the court expressly finds to be just and equitable." These factors were far from the universal mathematical calculation that the new maintenance law provides, and often led to wildly varying results in cases with similar financial situations.

No Court Ordered Unallocated Family Support: The new law prevents an Illinois divorce judge from ordering unallocated maintenance unless the Husband and Wife agree to it.

The Court Now Has Authority to Bar Maintenance in Marriages less than 10 years: The new law authorizes an Illinois Divorce Judge to permanently bar maintenance for marriages of 10 years or fewer, something that has been only available prior to the new maintenance law when the parties have agreed that maintenance was paid in a lump sum.

Maintenance Must be Subtracted from Payors’ Income in Calculating Child Support: The new law provides that judges must subtract maintenance payments from the payor’s income for purposes of calculating child support.

What is maintenance?

Maintenance (sometimes called alimony) is an amount of money determined by the law and your judge to be paid by the higher-income spouse to the lower-income spouse, the purpose of which is to help the lower-income spouse maintain the standard of living acquired during the marriage. Maintenance is usually tax deductible to the paying spouse and taxable as income to the receiving spouse.

How is maintenance determined?

Since 1977, Illinois divorce judges must use a two‑step process to determine maintenance in any particular case.

First Step: The Illinois divorce judge must determine whether maintenance is appropriate or not in your case. The judge must consider a number of factors as required by the applicable statute to make this determination. If the Judge determines that maintenance should be ordered, the second step is considered.

Second step: The judge must decide both the amount and duration of maintenance. Now, for the first time under the new maintenance law, Illinois divorce judges must apply mathematical formulas to determine the amount and duration of maintenance. Keep in mind that the new maintenance law does not change the primary judicial responsibility to first determine whether maintenance is appropriate in a given case.

Do the new formulas apply to every case where maintenance may be ordered?

No, the new formulas do not apply to all maintenance cases. An Illinois divorce judge can use the formula if the combined gross income of the husband and the wife is less than $250,000 and there is no multiple family situation. Notably, the new Illinois maintenance law does not contain a definition of “multiple family situation.” Presumably, it refers to situations where a spouse has a support obligation in one or more prior case. For example, your case is a second marriage, and your spouse is paying child support or maintenance to the first family. See my Article: How New Case Law Develops in Illinois.

How is maintenance calculated using the new maintenance formula in my Illinois divorce?

The amount of maintenance is based upon the combined “gross incomes” of both parties. “Gross income" means all income from all sources and the law then refers to the broad definition of “gross income” under the child support law. 750 ILCS 5\505 (b‑3).

Amount of Maintenance

First Step: Confirm that the combined gross (before tax) income of the Husband and Wife is $250,000 or less. If combined income is more than $ 250,000 the formula for the amount of maintenance does not apply.

Second Step: Apply the formula: Calculate 30% of the gross annual income of the higher wager earner, and then subtract 20% percent of lower wage earner’s gross annual income.

Simply put:

Payor's Gross Income x .30
Payee's Gross Income x .20
equals Proposed Annual Maintenance

Example 1:

Husband earns $100,000 per year and the Wife earns $25,000 per year.

Payor's Gross Income $100,000 x .30 = $30,000
Payee's Gross Income $ 25,000 x .20 = $5,000
equals $25,000 proposed annual maintenance, paid from Husband to Wife, providing Wife with a total of $50,000 of annual gross income.

Third Step: Calculate 40% of the combined gross income of both spouses, because the new Illinois maintanance law disallows the lower wage earner to have a total after-maintenance gross income of more than 40% of the combined gross annual income of the parties:

Husband’s annual gross income: $ 100,000

Wife’s annual gross income: $ 25,000

Total of gross annual incomes: $125,000 x 40% equals $50,000

In this example, because the wife’s income plus proposed maintenance equals $50,000, which is equal to 40% of the combined gross income, the maintenance awarded will be $25,000 under the new guidelines.

Example 2:

First Step: Combined annual gross income is less than $250,000

Second Step: apply formula to arrive at proposed annual maintenance amount

Wife’s annual gross income: $120,000 x .30 = $36,000

Husband’s gross income: $ 80,000 x .20 = $16,000

Proposed annual maintenance: $20,000

Third Step: Calculate 40% cap:

Combined gross income x 40%: $200,000 x .40 = $80,000

In this example, the Husband’s gross income is exactly 40% of the combined gross income of the parties, even before adding in the proposed maintenance amount of $20,000, and the Husband therefore would not be entitled to any maintenance.

While some of this may be confusing, we have made it easy for you to estimate the amount of maintenance you might have to pay or be entitled to.

Under the New Maintenance Law, How Long is Maintenance Paid?

So now that you know the amount of maintenance, you must apply the second formula to determine the length of time you will have to pay (or will receive) maintenance. The duration Formula is a simple math calculation. multiply the length of the marriage by the applicable factor.

For marriages lasting:

Length of Marriage

Factor to Multiply

Length of Maintenance

0 to 5 years of marriage


Example 5 years x.2 = 1 year

5 to 10 years of marriage


Example 8 years x.4 = 3.2 years

10 to 15 years of marriage


Example 10 years x.6 = 6 years

15 to 20 years of marriage


Example 19 years x.8 = 15.2 years

20 or more years of

20 or more years, the court may either make the duration of maintenance equal to the length of the marriage or make maintenance permanent.

Does the New Maintenance Statute change the calculation of Illinois Child Support in a divorce?

Yes it does.

If you are divorcing in Illinois and have minor children, the non-custodial parent will be required to pay child support based on a percentage of the net income of the non-custodial parent’s income, depending on the number of children. For 1 child, child support is based on 20% of net income; 2 is 28%; 3 is 32%; 4 is 40%; 5 is 45%; and 6 or more is 50% - this concept has not been affected.

Prior to the new Illinois maintenance law, child support was generally unaffected by the obligation to pay maintenance. Now, however, any new orders of child support will be reduced if the Father or Payor is ordered to pay maintenance. This is because maintenance payments are deducted from gross income (just like taxes, Social Security, Medicare, health insurance, union dues and other items) before arriving at your net income on which child support is based.

Is an Illinois divorce judge bound to use the formula if my case meets the requirement of combined income less than $250,000 and there is no multiple family situation?

While Illinois divorce judges will generally use the formulas to determine maintenance, they are not required to do so. If the judge decides not to follow the guidelines, the judge must state on the record the specific reasons, called "findings," he or she has for not following the guidelines.

Important tip from a practicing divorce lawyer. The new maintenance law provides for guideline amounts for maintenance. I have practiced family law in Illinois since before Illinois had guidelines for child support. Before the child support guidelines became law, Illinois family law Judges ordered child support on a case‑by‑case basis. Frequently the decisions varied district by district, courthouse by courthouse and even judge to judge. The decisions were inconsistent. When the child support guidelines became law it was thought that they would be rules of thumb or guides to setting child support. Instead they have become more like closely followed rules, so much so that is rare when an Illinois divorce judge does not follow the guidelines. It is my personal opinion that Illinois family court judges will likely follow the new maintenance guideline law in much the same way, honoring the guidelines more than simply using them as rules of thumb.

If a husband and wife are divorcing in Illinois, can they agree that no maintenance will be payable, or does the court make a determination anyway that maintenance is required?

An Illinois divorce judge will allow a divorcing couple Illinois to waive maintenance from each the other so long as the waiver is made “knowingly” and without any fraud or coercion on the part of the spouse that would pay maintenance. Generally, the judges will ask questions of both spouses at a hearing to satisfy himself or herself that both parties have knowingly and freely, without fraud or coercion entered into their marital settlement agreement. There are certainly cases where one spouse threatens or tricks the other into waiving maintenance, but these cases are relatively rare.

Celebrating Your First Holidays After a Divorce

There should be a law about getting back your sense of security and self-worth after a divorce. There are no magical answers, rest assured with time and patience, it will happen.

How do I get over feeling of loss that I have after my divorce?

The advice that we gave that was published on the Huffington Post is probably the best advice of all: A divorce or separation doesn't mean the end; it means a new beginning. In our decades of experience, we have seen hundreds of clients recover from their divorce to find love again. Keep a positive attitude and do what we suggested in our recent Huffington Post Article.

How Can I Avoid Probate in Illinois?

Probate is a legal case filed in a State of Illinois probate Court in order to transfer your assets upon your death to the people who will inherit them.

A probate case is expensive since it requires hiring and paying a lawyer and perhaps posting a bond. It also takes time to make the transfer of assets since it does not happen automatically but only after a probate Judge makes rulings in the case to make the transfers of assets. So, for most people in Illinois, probate is something to avoid.

Traditional Ways of Avoiding Probate in Illinois: Real Estate Owned Jointly with Your Spouse or Other Person

If you jointly own real estate with another person with a "right of survivorship," then the surviving co‑owner automatically owns 100% of the real estate when the other owner dies. The Right Survivorship is created by the deed that conveys title to the two of you. The right of survivorship in Illinois is commonly found in two cases.

JOINT TENANCY. The first is Joint tenancy. Real estate owned in joint tenancy automatically passes to the surviving owner when one owner dies. No probate is necessary. Joint tenancy of not only real estate, but other assets is permitted as well including, motor vehicles, joint bank accounts or other accounts may have this right of survivorship. In Illinois, each joint owner must own an equal share of the asset.

TENANCY BY THE ENTIRETY. This form of joint ownership is allowed only for real estate and then only if the couple is married or has entered into a civil union but also has a right of survivorship. Tenancy by the Entirety has the additional benefit of disallowing a creditor who obtains a judgment against just one spouse only, from enforcing that judgment by attaching that spouses one half interest in a jointly held the marital home. The downside of owning a real estate or other assets jointly with your spouse is that there is no provision for what happens to the asset once the two of you passed away.

Illinois Trust and Payable on Death Accounts

These accounts allow you to choose a beneficiary of certain Assets. Certain types of assets you may own permit you to choose a beneficiary on death. By choosing a beneficiary you avoid the probate of these types of assets. Retirement benefits: such as IRA, 401(k), 403(b) accounts, pension, and profit sharing plans, life insurance, and some annuities. You should be sure to have one or more people designated as beneficiary(s) to avoid probate. If you do not name a specific beneficiary or you name your state is beneficiary then this type of asset may need to be probated.

A “Pay-on-Death” (POD) account such as a bank account or stock brokerage accounts also bypassing your probate estate by having a named beneficiary(s) to receive the proceeds of your account on your death. Some stock brokerages also allow a similar “transfer on death” (TOD) for securities to avoid probate.


In Illinois there are commonly two types of trusts: a trust created by your Will that takes effect upon your death is called a “testamentary trust”. A trust created by you that takes effect while you are alive is called a "living trust" and provides for your assets to go to designated beneficiaries.

You can create a "living trust" to avoid probate of your assets including your marital home, or other real estate, bank accounts, stock accounts, motor vehicles and most other types of assets you own. A living trust is created by a document usually drafted by your lawyer in which you name a "trustee" which can be you, and a successor trustee to take over after you have passed away. Then you must transfer the ownership of your assets into the trust in order for the trust your to own them. So I deeded must be prepared transferring your real estate into the trust, your bank or stock accounts must now be transferred into the trust.

What is the advantage to creating a living trust to holding assets in Illinois?

1. At your death, your trustee and transfer the trust assets to whoever your name as beneficiaries. You can change your beneficiaries from time to time prior to your death without having to re‑create a trust or make additional real estate transfers or changes in the ownership of your other assets.

2. You can make provision within your trust for beneficiaries other than your spouse to receive some of your assets to take place upon your death or upon the death of your spouse just like you can with a Will but you will not need probate.

2. No expensive probate or attorneys' fees to transfer the assets upon your death.

3. New law in Illinois you should know.

Now for the first time in Illinois, you can now transfer your marital home into a living trust and have all the benefits of a tenancy by the entirety with your spouse, including the additional benefit of disallowing a creditor who obtains a judgment against just one spouse only, from enforcing that judgment by attaching that spouses one half interest in a jointly held the marital home.

Illinois Spouses or those in a civil union no longer must choose between the protection against creditors provided by tenancy by the entirety and the estate‑planning advantages of a revocable inter vivos trust. A living trust now serves these purposes. The new law also amends section 12‑112 of the Code of Civil Procedure (735 ILCS 5/12‑112). As amended, the second sentence of that section now reads as follows:

Any real property, or any beneficial interest in a land trust, or any interest in real property held in a revocable inter vivos trust or revocable inter vivos trusts created for estate planning purposes, held in tenancy by the entirety shall not be liable to be sold upon judgment entered on or after October 1, 1990 against only one of the tenants, except if the property was transferred into tenancy by the entirety with the sole intent to avoid the payment of debts existing at the time of the transfer beyond the transferor's ability to pay those debts as they become due.

New Law Provides New Way to Avoid Probate in Illinois for Real Estate, and It's Inexpensive, Too

In Illinois you can now leave real estate to designated beneficiaries by creating a transfer on death deed or beneficiary deed. The new law is known as the: Illinois Residential Real Property Transfer on Death Instrument Act. You must sign and record the deed now, but it doesn't take effect until your death. In addition you can take back a revoke the deeded any time, so the real estate at any time and your beneficiary has no present interest in the property.

There are pros and cons to using this means of avoiding probate for real estate in Illinois but it certainly is a method worth considering.

New Law On Illinois Power of Attorney for Health Care. Perhaps It's Time to Modernize Your Power of Attorney for Healthcare. For help, contact our attorneys at 630-920-8855.

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