One of the issues typically reserved in contested divorce cases is who will pay the children’s college after they graduate high school. Typically, most Marital Settlement Agreements will reserve this issue for determination at a later date, primarily because it is difficult to forecast how each party’s financial circumstances will look when the children ultimately attend college. If the children are quite young, it is even more difficult to predict where each party will be financially and whether college expenses will even be needed based upon the children’s scholastic abilities.
Section 513 of the Illinois Marriage and Dissolution of Marriage Act allows the Court to allocate expenses between both parents, as well as the child, based upon an examination of factors which include the parties’ financial resources, the standard of living the child would have enjoyed had the marriage not terminated, the child’s financial resources, and the child’s academic prowess. However, even in situations in which the issue of payment of college expenses has been reserved in a Marital Settlement Agreement, a spouse may wait too long to pursue college contribution from an ex-spouse, because his or her ability seek retroactive contribution to college expenses under Illinois law is limited.
The Illinois Supreme Court recently ruled that a petitioning party cannot obtain contribution from the other spouse for college expenses that were incurred prior to the date the petition was filed, if the Marital Settlement Agreement reserved the issue of how much, if any, each spouse should contribute to the cost of a child’s college education. In re Marriage of Peterson, 2011 IL 110984.
In Peterson, a divorced mother of three boys filed a petition for college contribution under her divorce decree, which had reserved the issue of each party’s obligation to pay for their children’s college expenses. When she filed her petition, the mother’s oldest son had graduated a year earlier, the middle son was still in college, and the youngest son was about to commence college. The mother’s petition sought retroactive college contribution for the two oldest children, one of whom had already graduated from Cornell University, and looked to obtain prospective college related expenses for the youngest and middle children. Her petition sought from her ex-spouse over $200,000 in past college expenses.
Unfortunately, for the wife in Peterson, her request for retroactive college expenses was denied in its entirety. Thus, her failure to file a petition before or at the time her oldest son started college cost her over $200,000, as well as the legal fees she incurred. The court’s ruling was designed to prevent litigants from waiting long periods of time before seeking contribution from their ex- spouses. The decision makes sense and serves as an important lesson that a delay in seeking college contribution from an ex-spouse can have devastating financial ramifications.