Unless your child is in college at the time of the divorce, it is not always obvious to some parents what their obligations are for their child’s post-high school education. Most often your Judgment for Dissolution of Marriage or Custody Judgment “reserves” the issue of college contribution pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act. In those situations, a party will usually have to file and properly notice a Motion for College Contribution prior to or at the start of the child’s college education in order to get an Order for college contribution.
In In re the Marriage of Petersen, 2011 IL 110984 (Ill. Sept. 22, 2011), the Court held that if a Judgment expressly reserves the issue of contribution, a court cannot order contribution prior to the filing of a petition for contribution. This case was significant not so much for its holding, but for its dicta. The court stated that had the Judgment expressly stated that a party “shall” contribute to the college expenses of a child, that it can be accessed retroactively against the non-paying parent.
That case led to more litigation, and in In re the Marriage of Spircoff, 2011 IL App (1st) 103189 and In re the Marriage of Koenig, 2012 IL App (2d) 110503, the Court held that retroactive contribution for college expenses can still be accessed retroactively even if the original Judgment reserves as to contribution amount so long as the parties’ obligation to contribute to college expenses is clear in the Judgment. In other words, retroactive college contribution can be assessed when a Judgment has language such as this: “the parties shall contribute to an amount as to be determined by this court pursuant to the parties’ resources at the time of the filing and notice of a proper petition”.
Not all Judgments are made the same, however. What if the Judgment does not say “shall”, but says “will” or “should” or “make best efforts”; is that enough? The answer is not clear but the result is that it has increased more litigation on this issue as courts are forced to examine the language and intent of the original judgment. It is also a reminder to attorneys drafting the original judgment to ensure that the language is clear as to whether the parties shall contribute or if it will be expressly reserved.
For those that expressly reserve college contribution, it is important that you file and notice the proper petition in Court as soon as possible as any contribution award will probably only be to the date of filing of your petition. And if your Judgment expressly states that the parties “shall” contribute, it is important that you keep adequate records of your contribution and/or file a petition in court to access the proper percentage of contribution; waiting too long or ignoring this issue may result in a judgment issued against you for thousands of dollars.