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College Expense Orders

Peter F Carroll - Thursday, August 23, 2018

Should a Court be able to force divorced and unmarried parents to pay for a child’s college expense, when married parents cannot be forced to do the same?A Judge in DuPage County recently refused to follow decades-old higher court decisions, and said “No.”This question is now on appeal before the Illinois Supreme Court.


Under Section 513 of the Illinois Marriage and Dissolution of Marriage Act, a Court may obligate unmarried and divorced parents to pay for their adult children's college expenses. There is no such mandate for married parents. The Act also draws a distinction between college students who have unmarried or divorced parents, and those with married parents.The students with married parents cannot receive court-ordered college support, but the students with unmarried parents can. Is this an unconstitutional distinction, a violation of “equal protection under the law”? The majority of states say “Yes”, and do not require parents to pay for college costs.But Illinois does.


In 1978, the Illinois Supreme Court upheld Section 513 in Kujawinski v. Kujawinski.The Court ruled that the Act had a rational relation to a state interest in protecting adult children in “non-traditional” families.It assumed that divorced parents would not support their children to the extent they would if they were married.The Court contrasted the divorced family with what seemed a “normal” household, where “natural pride would demand a moral obligation” for the parents to pay, quoting a 1959 decision in Maitzen v. Maitzen.Ten years later, in 1988, the ruling was expanded to apply to all unmarried parents, not just divorced ones.


The Maitzen decision was issued nearly 60 years ago.Times have changed.The national birth rate of unmarried women has increased from 18.4% to over 40%.As of 2011, the divorce rate in Illinois was 46%.It’s safe to say that more than half of households include unmarried, remarried, or divorced parents. In fact, according to a 2014 study, only 46% of children under the age of 18 live in a home which Kujawinski termed as a “normal” home.


Kujawinski and Maitzen are antiquated and should not apply in 2018 and beyond. The “normal” family of the 1970’s is now in the minority.


Our Supreme Court ruled that that divorced families will feel less “morally obligated” than “normal” families to help their children through college. That conclusion was not supported by a sociological study or statistical survey.What was the basis for that conclusion? Perhaps the Supreme Court Judges were relying on their experiences in the courtroom, where it seems that most parents fight over college expenses for their children.

I believe that the vast majority of parents do not bring petitions to force their ex-spouse to pay for college.They work things out without Court intervention.They pay, or they don’t pay, but they get to make that decision.Not the Judges.In short, is the support for Section 513 based on a false assumption?When the Illinois Supreme Court rules in the pending case of Yakich vs. Aulds, we will find out who wins.

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Carroll & Carroll Attorneys At Law - Serving the McHenry County Illinois Communities of:

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