Court Improperly Imputed New Spouse’s Income to Parent in Calculating 513 Contribution to College Expenses

college student 1It has become a trend since In re the Marriage of Rogers, 820 N.E.2d 386 (2004) to impute a spouse’s income for the purposes of support.  In Rogers, the Illinois Supreme Court held that the definition of income in 750 ILCS 5/505 includes gifts and loans received from other people, including family, for purposes of calculating child support.

However, the Illinois Appellate Court recently reversed a Du Page decision that imputed a husband’s income to the wife in allocating college educational expenses.  In In re Parentage of M.M., the Court ordered that the mother would be responsible for 33% of the college expenses, the father would be responsible for 45%, and the daughter for 22%.  However, the mother in this case is a stay-at-home mother who relies completely on her husband for financial support.  The Court found that the analysis to “impute” income is solely to determine if the new spouse’s financial contribution frees up the parent’s financial expenses, thus increasing the parent’s ability to contribute towards the child’s expenses.  However in In re M.M., the mother was a stay-at-home mother, and thus her husband’s income would not free up any money for mother to contribute towards the child’s educational expenses.

The Court in In re M.M. reviewed other court decisions, such as In re Marriage of Drysch, 314 Ill. App. 3d 640 (2000) in which the Court held that a court may consider as part of a parent’s “financial resources” for purposes of section 513, “money or property that could be available to [the parent]through her new spouse. The Court also reviewed Street v. Street, 325 Ill. App. 3d 108 (2001), in which the Court found that “to the extent that the current spouse of the payee has income or assets which are or can be used to contribute to the living expenses of the payee, his or her income and assets should be considered by the court in making its determination regarding the amount the payee is able to contribute to the child’s education.” The Court further noted that it was not saying that the new spouse of a parent is obligated to pay for the child’s education, but that only to the extent the “new spouse contributes to the expenses which would otherwise be paid by the parent, the new spouse’s income and assets are relevant.” Street, 325 Ill. App. 3d at 114.

Furthermore, Section 513 allows the trial court to “award sums of money out of the property and income of either or both parties.” 750 ILCS 5/513(a)(West 2012).  While the mother in In re M.M. earns no income, it was appropriate for the court to consider her husband’s income to the extent that his assistance would free up the mother’s own assets for contribution.  However, the court should not have used the new husband’s income as a baseline for determining the mother’s contribution toward her daughter’s college expenses.  By doing so, the court effectively shifted the burden to pay for her college expenses to the new husband, something he has no legal obligation to do.

In order to impute income to a party, the court must find that the party is voluntarily unemployed, is attempting to evade a support obligation, or has unreasonably failed to take advantage of an employment opportunity.  In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (2009). Furthermore, if the Court finds that a party is not making a good-faith effort to earn sufficient income, the court may set or continue the party’s support obligation at a higher level appropriate to the party’s skills and experience.  In re Marriage of Sweet, 316 Ill. App. 3d 101, 107 (2000).

The Court ultimately reversed the decision and remanded for a consideration as to how much, if any, income was freed up by the husband’s contribution and properly determine the correct award for contribution to college expenses.

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