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.

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