The amount and/or percentage of a parent’s obligation for contribution to their children’s college expenses is a matter often left undetermined in a divorce settlement or judgment for dissolution of marriage. Unless the parties have agreed in advance to the allocation of the expenses, one of three situations is present: 1) the settlement agreement or judgment “reserves” the issue of college expenses; 2) the settlement agreement or judgment simply states the parties “shall contribute” but leaves the amount of the contribution undetermined; or 3) there is no mention whatsoever of the need to contribute to college expenses in the settlement agreement or judgment.
Depending on the language used in the settlement agreement or judgment regarding college expenses, and when a party files a petition seeking contribution, the retroactivity (or how far back the judge can require contribution) differs. This had been a confusing topic to the courts and family law attorneys until the Illinois Supreme Court and Appellate Courts issued a serious of opinions on the issue over the last several years. For a full discussion of the cases, please see my full article in the January 2014 edition of the Illinois Bar Journal http://www.isba.org/ibj/authors/seckelromanj.
For purposes of this Article, a long explanation is unnecessary. In short summary, the following rules apply. If the court has “reserved “ the issue or if there is no mention in the settlement agreement or judgment for dissolution of marriage regarding the obligation to contribute to college expenses, the court can only make an award retroactive to the date of the filing of the petition. This is because the court will review the request for contribution as a modification of a support obligation. Under the statute, an award of support or modification of support may only be made retroactive to the date the petition was filed. When the issue is reserved, there was no obligation to contribute to college expenses at the time of the Judgment for Dissolution of Marriage. Therefore the new request for contribution is a modification. In short, the petitioning party is attempting to change the status quo.
Conversely, if the language in the divorce decree says the parties “shall contribute” or similar language imposing an obligation to pay college expenses, a petition seeking contribution to college expenses could be made retroactive to the date the college expenses were incurred, even if the petition seeking contribution is filed after the expenses were incurred. Unlike a case in which the issue is reserved, the court will view language (“shall contribute”) as an established obligation of the party to pay something, and the petition seeking contribution is deemed an attempt to enforce, not modify, the previous court order. The court will take this stance even though the amount of the contribution has not yet been determined.
Regardless of the language in the divorce decree, the best time to file a petition seeking contribution to college expenses is before the expenses are incurred, generally the fall or spring before the child starts college. Doing this provides ample time to negotiate and settle or litigate or otherwise resolve the matter at hand before the expenses are incurred and avoids any issues over the retroactivity of the obligation. If you are like many, and have procrastinated in seeking a determination of the allocation of college expenses, the language of your divorce decree will determine whether relief can be obtained retroactively.
Roman J. Seckel
Drendel & Jansons Law Group
111 Flinn Street Batavia, IL 60510
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