By Amy Silberstein

Pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), a court may “award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the educational expenses of any child of the parties.”  750 ILCS 5/513.  This section of the IMDMA guides a parent’s contribution to educational for a non-minor child.

A common question that comes up when individuals with children are getting divorced is, “when do we decide how to pay for college (or any post-high school education program)?”   If you have young children, the answer is not for many years.  If you have older minor children or children who recently emancipated, you might be approaching the time to start thinking about post-high school educational expenses.  In short, although there may be some exceptions, a court will often not determine the division of college expenses until your child knows which college, university, trade-school, or post-high school program he or she will be attending.

Just as it is hard to determine the value of a house before selling it, it is hard to determine the cost of a post-high school program before a child is accepted into that program.  Although Illinois has a maximum contribution amount, which is the cost of in-state tuition and fees at the University of Illinois at Urbana-Champaign for the same year, until your child is accepted into a program (and if your child was accepted into multiple programs, until he or she decides which program to attend), it will be nearly impossible to calculate the contribution amount.  Thus, most judges will not determine a parent’s contribution to post-high school educational program expenses until a program is decided upon.

When do I start planning to file for college contribution?

It is not a bad idea to begin thinking about this as soon as your child begins applying to post-high school programs.  During the time between applications and acceptances or decision-making, there is also always the possibility that you and your ex-spouse (or soon to be ex-spouse) may be able to work out an agreement about the division of expenses.   In the scenario where you are unable to agree about the division of expenses, thinking about the division of expenses in advance will give you a chance to plan out your eventual filing.

If you are thinking about the division of post-high school educational expenses before your child knows which post-high school educational program he or she will be attending, it does not hurt to start talking with an attorney, so you can be ready to file once your child decides what he or she will be doing.  Asking the court to order your ex-spouse (or soon to be ex-spouse) to contribute to college expenses will involve more than just filing your petition for contribution.   At the same time as filing, you will also have to provide a new financial affidavit along with specific supporting financial documents.   After you file your petition for contribution, your ex-spouse (or soon to be ex-spouse) will get time to respond to your pleading, and one or both of you may want to conduct discovery on the other parent.  If you know you will want to issue discovery, you can prepare your discovery requests in advance too.  It will all take some time to prepare, so working with an attorney a month or so in advance of when you plan to file for contribution will give you a head start on preparing everything, and will help you not be rushed when it comes time to actually file.

Depending on your judge and whether or not discovery is conducted, the whole process may take about two months on the fast end, but it often takes much longer.  Since the whole process will take some time to go through court after the petition for contribution is filed, thinking ahead and preparing everything in advance of when you want to file will help you be ready to file once your child makes a decision.

Once a parent hears how long it might take to proceed on a petition for contribution, a concern that often comes up is about tuition payments (or other educational expense payments) being due without a determination of the split of expenses.  While I recommend filing a petition for contribution as soon as your child decides which post-high school educational program he or she will be attending, it may be unavoidable that tuition is due before the contribution amounts are determined.  Other expenses may also have to be paid before the petition is heard by your judge, such as room and board and textbook purchases. In that scenario, if you are able to make tuition payments, and other necessary payments, I would suggest holding onto all receipts and proofs of those payments.  You may be able to get reimbursed by the other parent for those payments once your petition for contribution is heard, or you might get an offset on your contributions moving forward for the funds you have already paid towards your child’s education.

What if my child is still undecided in the weeks leading up to the start of school?

In domestic relations, there will always be exceptions to the standard rule by judges who make different rulings than most others.  If your child is still undecided in the month or two leading up to the start of school, but he or she is deciding between just a few programs (or waiting to hear back from a few programs) that are comparable in cost, you may be able to proceed on your petition for contribution without knowing what program your child will be attending.  We recently had a case where a child was accepted into one university and he was waiting to hear back from another university, where the cost between the two was only a difference of a few thousand dollars.  The judge in that case was willing to make a determination of the split of the college expenses before the child decided what university he was attending, since the difference in cost between the two was so small. That being said, this determination was definitely the exception from what most judges are willing to do.  Most judges have taken the stance of being unwilling to decide the split of expenses until a child decides on a program and the cost of the program is certain, or nearly certain.

For more information about a parent’s obligation to contribute to post-high school educational expenses, I recommend reviewing our other blog posts on this topic and reviewing the statute (750 ILCS 5/513).