By Marvin Mendez, Divorce and Family Law Attorney
As high school seniors prepare to make their final college decision in the coming weeks, our office at Stern Perkoski Mendez has been receiving more calls about how to handle college education expenses. Many parents plan to contribute to their child’s tuition—and are wondering if their former spouse is obligated to do the same.
When a couple is married, the law does not require them to pay for their children’s college tuition. If you are divorced, the court can order one or both parents to pay for college, but it’s not mandatory. Let’s take a closer look at all the factors the court will consider when determining college contributions.
My ex should be helping with tuition and isn’t. What do I do?
If you believe your spouse should be contributing more than they currently are, the first step is to file the relevant petition with the Court. A court cannot award any relief for expenses that have been incurred if no petition is pending or on file. The Court can, however, award retroactive relief to the date a petition is filed. By filing your petition sooner than later you are preserving your claim to retroactive relief, even if the underlying petition takes months to resolve.
While there is no law requiring your spouse to contribute to college during or after divorce, it’s very possible your spouse should be contributing. The court will look at and consider both parties total financial circumstances, such as their ability to contribute, their respective income, assets and daily expenses in order to determine a contribution.
How does the court calculate our expected college contributions?
Except for good cause shown, a Court will not order a parent to contribute or share in tuition and fees that otherwise exceeds the cost of attending Illinois at Urbana-Champaign. Unless otherwise agreed or for good cause shown, the Court can only order a contribution within the realm and costs of attending Illinois at Urbana-Champaign.
When determining whether to order a parent to contribute to these expenses, the court will be mindful of how this obligation would affect your spouse’s day-to-day life. Clients commonly assume that certain life and financial circumstances will lead to their former spouse having to pay for college. Unfortunately, that’s not always the case.
For example, we’ve had clients assume that, because their spouse had a more robust retirement account and investment portfolio, they’d be expected to contribute more heavily to their child’s college expense. This is not always true—because in addition to negative tax repercussions, this could significantly decrease the spouse’s stability and quality of life in retirement.
Other clients have assumed that their high-earning former spouse would need to pay for the majority of college tuition. However, if your ex-spouse has had more children after your divorce, has an expensive mortgage or married someone with expensive medical needs, the court will take all of that into account. Your former spouse’s income is not the only factor and may not require them to cover college expenses. The exercise here is governed by the “totality of circumstances”.
The court will look at your former spouse’s full financial portrait and make its decision accordingly. While it is certainly common for the court to find that the former spouse should be contributing to college, we can’t assume this will be the case based on assets or income alone.
The court will also consider your child’s ability. Unfortunately, if your child struggled during high school and received lower grades, and a parent now wishes to send the child to an expensive educational institution, the court is less likely to mandate college contribution. Or, it may put forth strict parameters such as requiring that a student maintain a “C” grade point average before requiring further financial contribution by a parent.
Similarly, if your child excelled throughout high school, is seeking a targeted education path likely to lead to a successful career, or their talents are unparalleled or highly qualified for a school outside of Illinois Urbana-Champaign, the court is likely to remove the Illinois Urbana-Champaign cap as equity may require.
When should I file for tuition support from my ex?
It’s very important that you seek the appropriate contribution before or during your child’s college years. College contribution can only be prospective. The court cannot order your former spouse to reimburse you for your child’s college expenses which pre-date the filing of your petition for college contribution. The Court may consider any payments that were made before the petition was filed in its decision to award a prospective college contribution, but the Court is not obligated to enter an order requiring any reimbursement. The secret to the proper relief is timing.
If your child is partially through college, it’s not too late! You can still seek college contribution for their remaining years. While you won’t get reimbursed for the previous semesters, it is possible that the court will consider your prior contributions and the other parent’s lack of contribution, and therefore decide that your former spouse must pay a larger percentage for the remaining years.
Should you or your former spouse’s financial situations change significantly, you can return to court to have the agreement modified any time, as long as your child is still in college. It’s also important to recognize that filing for college contribution is your responsibility—your child cannot seek financial contributions for educational expenses from either parent.
Contact Our Divorce and Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook
As your children become adults, you continue to want the absolute best for them—and the same quality of life they would have had prior to divorce.
If you believe your spouse should be contributing more to your children’s college expenses, I encourage you to contact our team. You can request a free consultation online or call us at (847) 868-9584. We’ll happily meet with you at our North Shore offices in Evanston or Lake Forest, or at our downtown Chicago location.