Illinois divorce courts can order parents to pay for post-high school educational expenses of their children not paid by loans, grants, scholarships, and other resources. This area of law has been subject of many recent appellate court opinions. In Marriage of Donnelly, the appellate court found a parent could be ordered to contribute to past college expenses, based on the language in their divorce judgment and marital settlement agreement (MSA).
Joseph and Renee Donnelly divorced in 1996. Their MSA provided in part that they agreed to pay for their children’s educational expenses. The MSA did not specify the amounts or percentages each parent would pay, but their obligations would “based upon their then respective financial conditions.” The MSA also allowed the court to resolve any disagreements Joseph and Renee had about the educational expenses.
In July 2013, Renee filed a petition against Joseph, alleging he failed to pay for the children’s educational expenses dating back to 1998 (!!). Joseph argued that under the 2011 Illinois Supreme Court opinion in Marriage of Petersen, the court could not order him to contribute retroactively to educational expenses incurred before Renee filed her petition.
The appellate court in Donnelly found the language from the Petersen MSA merely reserved the issue of college expenses. In contrast, the Donnelly MSA included more than a reservation, but established the parents’ duties to contribute to college expenses, although it did not set any amounts or percentages.
The essential holding from Donnelly is that even when a divorce judgment does not specify the amounts or percentages each parent must pay for their children’s post-high school educational expenses, the court can still order one divorced parent to reimburse the other parent for college expenses paid before a college expense petition is filed. The lawyerly answer of “It depends” unfortunately seems to apply, because answering the question depends on the language in the divorce papers.
The Law Office of Christopher Haaff has dealt with many college expense issues, both in original divorces and in post-judgment proceedings. Generally my MSAs have provided for the Petersen type of mere reservation when the child or children of the divorcing parents are very young. When the child or children are closer to college age, many but not all of my MSAs included more college expense provisions. If parents cover the college expense issues in their original divorce, they have fewer issues to address when they return to court on college expense issues.
Also, it surprised me that a parent waited FIFTEEN years after the eldest child started college to bring a petition seeking the other parent’s contribution to previous college expenses. The Donnelly opinion does not say why the mother waited so long. I inform people to file their college expense motions near the time the child graduates high school. That way, the parents have more money to spend on their children, rather than pay attorneys to fight over retroactivity.