Snoozing and Losing…How Hoping for an Agreement on College Can Cost You.

In a recent post, I explained how most divorcing parties use language in their Marital Settlement Agreements that defers allocation of college expenses to a time when the child is ready for college (this provision also applies to parents who were never married).  While the practice is sound for a number of reasons, most people are entirely unaware that the date on which they file a formal request with the court to force the ex spouse to pay is of extreme importance.  And this issue is a clear example of what you don’t know, can in fact hurt you.

In 2009 a mother contacted me to pursue her former husband for contribution to their daughter’s college expenses.  The mother explained that the daughter had attended five different schools and had graduated only a few months earlier.  Never before had anyone waited until the child graduated from college to ask me to seek contribution.  After researching the law and finding no time limitation for filing such a request, I proceeded with an action, took it to trial in 2010, and collected a tidy sum for my client.  And shortly thereafter, along came the Petersens.

The Petersen family (not clients of mine) litigated the issue of whether a parent can ask for retroactive contribution to college expenses.  After the trial court weighed in, it went to the Appellate Court and ultimately the Illinois Supreme Court.  There it was held in September 2011 that contribution to college expenses is in the same nature as child support.  Accordingly, courts are now obligated to apportion expenses from the date the request was formally filed, and may not order reimbursement of expenses incurred prior to the filing of the request.  Did you catch that? 

If you and your former spouse (or former significant other in the case of paternity matters) are discussing matters and negotiations break down when it is time for junior to head off to school, should you advance payment for the first semester of bills, do not expect any relief from the court when you seek reimbursement.  In other words, when it comes to getting your request on file, if you snooze, you lose.

Another related factor of great importance is that in an effort to avoid legal fees, many people continue negotiations and avoid filing a request with the court as long as possible.  Unfortunately, they fail to realize that it takes time for the request to work its way through the system.  Bringing the point home, do not think you can file in the summer and be assured that the court will hold a hearing before the fall semester.  In fact, I once filed a petition in March and made a request in May for a hearing to be held on college contribution sometime prior to Labor Day.  The court informed me that its docket was overly crowded, and it had no openings for hearings until late September!

In conclusion, it should be noted that filing a formal request for college contribution protects your rights and in no way precludes you from reaching a settlement with your former spouse.  In fact, this step forward often serves as a catalyst to bring matters to a head so they can be resolved.  So inasmuch as time is money, do not waste it and do not delay in filing your petition– or it could really cost you.