Friday, October 2, 2009

higher education and divorce

In a dissolution of marriage case the court can order one or both parents to contribute towards the higher education costs and expenses for the benefit of their children. This article discusses some of the constitutional implications of this statute. It further addresses some practical advice in addressing agreements to contribute to higher education.

In a divorce proceeding the court can order the parents to contribute towards the Higher Education of their child. 750 ILCS 5/513. Such a request for contribution can be made before or after the child has reached the age of majority. 750 ILCS 5/513 (a)(2). The statute points out “The educational expenses may include, but shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.”750 ILCS 5/513 (a)(2). The court can consider all relevant factors before ordering the contribution to higher education costs including “1) The financial resources of both parents. (2) The standard of living the child would have enjoyed had the marriage not been dissolved. (3) The financial resources of the child. (4) The child's academic performance.” 750 ILCS 5/513 (b). In this article I will discuss the constitutionality of this statute. I will also make some suggestions on addressing higher education funding in divorce proceedings.

The constitutionality of this statute has been unsuccessfully challenged based on the claim it violates the “equal protection” clause of the Fourteenth Amendment to the United States Constitution.The 14th Amendment to the United States Constitution. The Fourteenth Amendment states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. The 14th Amendment to the United States Constitution.

Married parents have no legal obligation to pay for their children’s higher education. Yet, under Illinois law, divorced parents can be compelled to pay for their children’s college education. Thus, it has been argued that by treating two similarly situated people dissimilarly it violates the equal protection clause of the Fourteenth Amendment. The 14th Amendment to the United States Constitution. In the case of In re Marriage of Kujawinski, the court upheld the constitutionality of the statute based on an equal protection challenge. In re Marriage of Kujawinski, 71 Ill. 2d. 563, 376 N.E. 2d. 1382 (Ill. Supreme 1978). This argument was again unsuccessfully made in the case of In re Marriage of Kuhn. In re Marriage of Kuhn 221 Ill. App. 3d. 1, 163 Ill. Dec. 429, 581 N.E. 3d. 380 (2nd Dist. 1991).

Although, this statute has survived constitutional challenges based on “equal protection”, it may be vulnerable to attack based on other constitutional grounds. The 14th Amendment to the United States Constitution. It can be argued the statute deprives a parent of his or her “liberty” raising their child as they see fit. The 14th Amendment to the United States Constitution. There are parents who believe struggling through college helps turn a child into a well rounded adult. There are those wealthy individuals who attribute their later success in life to working their way through college. Not to mention some of the most successful people in the world never completed college. Abraham Lincoln only had a year of formal education. Billionaires such as Bill Gates (Microsoft®) and Steve Jobs (Apple®) never finished college.

In the movie Soul Man a student is accepted to attend Harvard University but his rich parents will not pay the tuition. When he approaches the University concerning financial aid he is informed, “...they have support for parents who are poor, but not for those whose parents are assholes.” Soul Man, New World Pictures 1986. I believe parents should try and pay as much as they can afford towards their children’s education. That being said the opposite opinion is not inherently unreasonable.

Contribution hearings also show a likelihood for becoming even more contentious in the future. As people have children later in life and the economy gets worse this will add to the problems associated with paying for higher education. Parents may have a legitimate concern for their own well being. As a parent nears the retirement age she may take the position that the children will have time to pay back student loans but she needs her savings to retire. It is easier to obtain loans and grants for higher education then for adults to obtain money for retirement and medical care. A student has far more time and less obligations in order to pay back debt. The Illinois Supreme Court has discussed how one of the fundamental rights a parent has is the right to raise their children as they see fit. The Illinois Supreme Court in finding the Illinois Grandparents visitation statute unconstitutional discusses how it is presumed a fit parent will do what is best for his children. Lula v. Lula 193 Ill.2d 455, 739 N.E.2d 521 (Ill. Supreme 2000); Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002) . Thus, if a parent does not want to send their child to college, isn’t that decision constitutionally protected? Isn’t such a decision presumed to be in the child’s best interest?

In the case of Wickham v. Byrne the Illinois Supreme Court states “One of the fundamental rights protected under the Fourteenth Amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). The court goes on to say, “Decisions concerning care, custody, and control include, for example, decisions about a child's education, religion, and general upbringing.”Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). These decisions are not based on equal protection but based on the fundamental right to “liberty” also provided under the 14th Amendment of the United State’s Constitution. The 14th Amendment to the United State’s Constitution.

The statute may also be vulnerable to a claim based on religious freedom under the “establishment’ and “free exercise” clauses of the First Amendment. The 1st Amendment to the United State’s Constitution. There may also be a challenge based on “freedom of speech”. The First Amendment to the United States Constitution states “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The 1st Amendment to the United State’s Constitution.

In Wisconsin v. Yoder, the United States Supreme Court held that Amish children could be exempt from compulsory education requirements. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The court found a statute allowing the government to require parents to make their children obtain a certain level of education despite the wishes of the parents was unconstitutional. This decision was clearly based on some unique characteristics of the Amish. These included not only their religious beliefs, but also how they have been self-sufficient and require little government involvement. It could still be argued the state does not have a compelling interest to force an unwilling parent to pay for college.

Unless there are extraordinary circumstances, it would be very difficult to convince a judge a child should not go to college for religious reasons. A better argument would be that a parent should be allowed to reject a specific school for religious reasons. If the court were to order a parent to pay money to a school that holds views fundamentally opposed to his or her religious beliefs, doesn’t it violate the parent’s First Amendment rights? The 1st Amendment to the United State’s Constitution. Isn’t the judge and thus the government endorsing whatever religion with which the school is affiliated?

Why should a fundamentalist Christian be forced to pay for his or her child to attend a college that teaches evolution? Why should a person who is not Christian pay for their child to attend a school that encourages prayer and fundamentalist doctrines? In the case of In re Marriage of Spear, the court upholds the trial court decision that the father need not contribute to college expenses at an unaccredited bible college. In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court, however, does not base its decision on the First Amendment and specifically states “We make no attempt to compare the benefits of Bible college and secular schools; we focus instead on the propriety of the school for the particular student based on ‘all relevant factors.’” In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court goes on to state, “Here, if Patience had expressed a strong desire to pursue a religious vocation such as working as a missionary or a pastor, her choice to attend a bible college might be a logical one, and the focus would then shift to other relevant factors such as the financial resources of her parents.” In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court seems more interested in what is in the student’s best interests then what the parent wanted.

There are various Supreme Court cases where government funds are used to pay for a religious education that have been upheld against First Amendment challenges. Witters v. Washington Department of Services for the Blind, 474 U.S. 481(U.S. Supreme 1986). Zelman, v. Simmons Harris, 536 U.S. 639 (U.S. Supreme 2002). Yet in these cases the money was provided to individuals to use as they saw fit. It was the individual and not the government who choose a religious school. If the court orders a parent to pay for tuition to a specific college with a religious affiliation that judge is ordering a parent to support directly that religious institution and thus that religion.

If a parent is forced to pay for a particular school it also impacts their freedom of speech. In Buckley v. Valeo the Supreme Court, in the context of political campaign reform, discusses how money is a form of speech. Buckley v. Valeo, 424 U.S. 1 (Supreme 1976). In America money does talk and paying money to a school says a parent supports that school. It may make a religious statement if a student attends a religious institution such as Notre Dame or Wheaton College.

A student’s choice of schools may also make a make a statement of defiance. A parent who attended the University of Illinois may not want their child to go to the University of Michigan or the University of North Carolina based on memories of past sporting events. A parent with conservative political views may not want their child to go to a liberal college. Does it violate the First Amendment to order a parent to pay for a college of which they don’t approve. If money talks then that speech is protected by the constitution. Gloria Steinem said, “We can tell our values by looking at our checkbook stubs”.

As a general rule Illinois courts have shown a preference towards public schools vs. private schools. In re Support of Pearson, 111 Ill. 2d 545. 490 N.E. 2d. 1274 (Ill. Supreme 1986). That being said, courts have supported sending children to private schools as well. Gibb v. Troezemberg, 188 Ill. App. 3d. 695, 135 Ill. Sec. 948, 544 N.E.2d. 444 (4th Dist. 1989). These cases appear to be decided based on financial circumstances and resources of the parents and the child rather then on politics or religious reasons.

In terms of practical advice, most judges will order a parent to contribute to college if they can afford it. This is due in part to the fact that college has become a necessity in a modern world. A college degree is equivalent to a high school diploma in the past. Also, judges and lawyers all have college degrees as well as law degrees, so most believe that higher education is a necessity.

That being said where the child goes to obtain higher education is a matter a parent has some room about which to argue. This is particularly true when a parent has a good faith argument that a particular institution is not appropriate. That could be based on money, religion or simply an honest belief as to what is best for the child.

It also makes good sense to think about higher education during the time of the divorce decree to avoid conflict later on. People change as time goes on. People’s values grow apart after a divorce. Thus, at the time of the divorce it may be easier to agree on how best to address higher education costs.

Addressing higher education at the time of the divorce allows parents an opportunity to save for college appropriately. A responsible parent may put money away for the child’s education each month. During the same period of time the other parent may not save any money for education. Then at the time the responsible parent petitions for higher education support, the judge may consider the financial resources of the child and point out that the child already has plenty of money. Thus, the financially responsible parent is punished for their sacrifice. If both parents know in advance how college is to be paid for, they will be better prepared to save.

If at the time of the divorce, a child is very young and the parents have no idea of his or her talents, it may be more difficult to plan for higher education at the time of the divorce. Obviously, a child’s grades, talents and desires are not yet possible to determine. Thus, in certain circumstances it may benefit the parties to wait.

It is also advisable in coming to an agreement to pay for higher education that expenses be as specific as possible. How is higher education defined? Should it be a private or public institution? Must the school be accredited? Does it include only four year universities or colleges or is a trade school or junior college appropriate. What does college include? Does it include transportation, food, clothes, insurance and gasoline? Are there geographic restrictions? Is it appropriate to go a University in Hawaii or in Malibu? Does it include a lap-top computer books and supplies. Does it matter if the college requires a computer?

What is the responsibility of the student? Does the student need to first apply for student loans, grants and scholarships? Does the student need to obtain certain grades? Can the student leave school and then come back? If the student gets married should the parents continue to pay for school? Must the student provide a class schedule to the parents and a copy of his or her grades?

Are there financial limitations? There are culinary schools in New York City and Paris France far more expensive then the most expensive private colleges. How many years of college must a parent contribute towards? Must the student graduate in four years? Are the parents willing to pay for graduate school?

Parents tend to want to be ambiguous when it comes to agreements concerning higher education. Parents tend to assume their child will make a reasonable and prudent decision. This is often a mistake. I would argue this is one area of the law where being detailed and specific can benefit your client a great deal in the end. If one parent is to pay the entire cost of higher education, there is a greater likelihood for problems down the road as only one person has a real incentive to keep costs down. Thus, in such cases it is important to be particularly detailed.

In conclusion, the contribution towards higher education is an area of the law that has interesting constitutional implications. It can help to avoid problems by agreeing to higher education expenses at the time of the divorce. Finally, the more detailed and specific any agreement is concerning higher education, the greater the likelihood you wont have to come back to court for this topic in the future.


  1. Its really practical.It will be helpful for when single parent is not capable for affording higher education of child.

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  2. I really like your writing style, great information, thankyou for posting. mba emphasis on e-governance