College Contribution

Case Study: Are Illinois Orders to Pay College Expenses Still Constitutional?

Published on: June 11, 2018 | Kollias, P.C.

In Illinois, divorced and never-married parents may have an obligation to contribute to post-high school expenses for their children once they emancipate, or “age out” of being a minor child under the law. This typically happens when the child turns 18 or graduates from high school, whichever happens last. At that point, many children will go on to attend college, trade schools, and various other types of career training. Section 513(a) of the Illinois Marriage and Dissolution of Marriage Act is the relevant statute on this issue, and it provides:

“The 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.”

The New Illinois Marriage and Dissolution of Marriage Act Effective January 1, 2016

Published on: October 30, 2015 | Kollias, P.C.

Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979. Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update. For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.

The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed. The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.

The following is a brief summary of some of the important changes to the Act:

Grounds:

Presently, a person seeking a divorce must allege “grounds” for the divorce. Most commonly, people cite “irreconcilable differences” as the reason for a divorce. To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months. The must also prove that the marriage is over and not salvageable. The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.

The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences. Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.

Read Your Decree: Nuances Regarding a Parent’s Obligation to Pay for College in Illinois

Published on: July 29, 2014 | Kollias, P.C.

For most legal purposes, a child is considered an adult at age 18. He can vote. He can serve in the military. He can enter into a legally-enforceable contract. He can get married without the consent of his parents. And if he wants his parents to pay for his college education, his parents would be well within their rights to tell junior that he’s a grown man now, and he has to pay his own way. Provided the parents are married to each other, that is.

Under Illinois law, the Court has the authority to order parents who are either divorced or were never married to pay a portion of the cost of junior’s college education. But why should divorced or never-married parents have legal obligations that married couples don’t have? Doesn’t that seem unfair? It sure seems that way. In fact, in the case of Webb v. Sowell, the South Carolina Supreme Court held that treating unmarried parents differently from married parents is an unconstitutional violation of the Equal Protection Clause. The Pennsylvania Supreme Court thinks so, too. However, such constitutional challenges to the law in Illinois have failed.
As a result, disputes regarding how much each parent owes for junior’s college education are common in Illinois. Under 750 ILCS 5/513, either parent may file a petition for the court to determine how much each party should be contributing. In cases where the parties were divorced long before the thought of paying for college ever occupied a prominent place in either party’s mind, judgments of dissolution of marriage often contain generic language stating either that the parties “shall contribute to the cost of college in accordance with the provisions of the Illinois Marriage and Dissolution of Marriage Act,” or state that “the parties’ obligations to contribute to the cost of college are reserved.” While in either case it would seem that the court is putting off any decision on the issue until some point in the future, the fact of the matter is that there is a drastic difference in the legal meaning of “shall contribute” as opposed to “reserved.”