Timing Is Important When Allocating College Expenses After a Divorce

Through Section 513 of the Illinois Marriage and Dissolution of Marriage Act, or IMDMA, a divorcing couple with a younger child may decide to "reserve" until a later date closer to the time the child will be enrolling in college the decision of how future college expenses will be allocated. When it is time to decide the contribution amount of each former spouse to their child's higher education, a petition to determine the allocation of expenses will be made to the court.

However, reserving this determination until a later date does not allow the spouses to receive contributions for college expenses incurred before filing a petition with the court, only expenses incurred after the petition is made are eligible for contribution. In 2011, the Illinois Supreme Court addressed this issue in the case of In re the Marriage of Petersen.

The Petersen Case

In 1999, during the Petersen's divorce process, the wife gained sole custody of the couple's three children. It also was agreed that the spouses' contribution to their children's college educational expenses would be decided on a future date, as the couple's children were not yet college age; therefore, no specific amounts or percentages to be paid were ordered by the divorce decree. Specifically, the language used in the divorce decree stated: "The Court expressly reserves the issue of each party's obligation to contribute to the college or other educational expenses of the parties' children pursuant to Section 513 of the Illinois Marriage and Dissolution Act."

In 2007, the wife petitioned the trial court to determine the allocation of the children's college expenses between the ex-spouses. By the time the petition was filed, the couple's eldest child had completed college, the middle child had partially completed college and the third child was a senior in high school. In the petition, the wife asked the court to compel her former husband to contribute money for the future college expenses of the middle and third child and to reimburse part of the costs previously incurred to pay for the college expenses of the eldest and middle child.

The petition was granted by the trial court, and the husband was ordered to pay for 75 percent of the children's college expenses, past and future. Overruling the trial court's decision in part, an Illinois appellate court ruled the petition was a modification of the couple's divorce decree, and as such, the husband could not be ordered to pay expenses incurred before the wife filed the petition. The Illinois Supreme Court, on appeal, agreed with the appellate court's ruling.

The Holding of the Illinois Supreme Court

The Illinois Supreme Court held that the court cannot mandate one spouse to contribute to expenses incurred before the filing of the petition when the divorce decree states that the allocation of college expenses is reserved, pursuant to Section 513 of the IMDMA, for a future date. The court reached this ruling not only because of the language of the statute, but also the legislature's intention of how the law was to be construed.

First, the court found that a petition to allocate college expenses under Section 513 of the IMDMA is really a petition to modify a "support" obligation of a finalized divorce decree. So, before filing the petition the husband "had no concrete obligation to provide for education expenses under the [divorce] decree," asking the court to allocate college expenses is really a request to modify the divorce decree.

Therefore, the court found the petition is governed by Section 510 of the IMDMA, which states that "the provisions of any judgment respecting maintenance and support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." Thus, the court cannot modify the support provisions of a final divorce decree to mandate contributions for expenses incurred prior to the filing of the petition.

Second, the court found the legislature intended the Act to be "liberally construed so as to promote its underlying purposes." Two underlying purposes the court found are:

  • "To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage."
  • "To secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of the children during and after the litigation."

Using these two purposes, the court stated that allowing one spouse wait "indefinitely" to file a petition to modify a support provision to a divorce decree and create an "open-ended obligation on a spouse" fails to "comport with the purposes of the Act."

The Petersen case highlights the importance of filing timely petitions when the specific terms of portions of final divorce decrees are reserved for future determination. If your final divorce decree contains reserved provisions such as support for your children's future college expenses, speak with an experienced family law attorney about the proper timing of filing a petition to have these reserved provisions determined by a judge.