DuPage County Judge Strikes Down College Expense Law

Wheaton family law attorneysLast month, a judge in DuPage County vacated a support order based on a 40-year-old Illinois law. The law allows judges to order divorced parents—but not parents who are still married—to contribute to their children’s college (or other post-secondary education) expenses even after the age of 18. While the judge’s recent ruling is not precedential, it has set the stage for serious change in the state.

The Case in Question

The circumstances that led to the ruling could describe those in any number of Illinois families. The student in question was a young woman who spent many years interested in marine biology. Her divorced parents supported her interest, and her father financed several dive excursions for her in exotic locations. Her father was so supportive that he even offered to pay for her full college education if she chose one of two specific schools offering a course of study in marine biology—one in Hawaii and the other in California.

According to court records, however, the daughter, with the help of her mother, decided to attend a school in Florida that did not offer marine biology as an undergraduate program. In 2016, the mother asked the court to order the father to contribute toward the daughter’s school expenses. Despite the father’s objections, the court ordered the father to cover 40 percent of the tuition, room and board, and other costs.

Equal Protection Claims

In August 2017, the father petitioned to have the state law regarding non-minor support for college expenses deemed unconstitutional. The motion claimed that allowing courts to order divorced parents to pay for college when still-married parents cannot be ordered to do so violates the equal protection clause of the U.S. Constitution’s Fourteenth Amendment. The father explained in the motion that if he and his wife were still married, he would be allowed to set conditions for helping his daughter pay for school. The existing law, he claimed, denied him that right.

DuPage County Circuit Court Judge Thomas Else handed down his ruling in May, and he agreed with the father. Else found that the statute was written at a time when children of divorced parents were likely to be at a disadvantage compared to those whose parents were married and that the law gave the courts authority to account for those disadvantages. “While this may have been true in 1978,” Else wrote in his ruling, “there is no basis for such a conclusion today.”

The judge also acknowledged that the father was not necessarily looking to get out of helping his daughter; he just wanted the same input in the decision-making process that a still-married father would have. The ruling vacated the 2016 order and found the law to be unconstitutional.

Moving Forward

As of now, the ruling only applies to this specific case. A precedent cannot be set until the case is heard by an appeals court or the Illinois Supreme Court. MKFM Law has filed its Appearance and Notice of Appeal to the Illinois Supreme Court in this matter.

If you have been ordered to help your child pay for college, the outcome of this case could have an impact on your obligations. Contact an experienced DuPage County family law attorney to discuss your situation today. Call 630-665-7300 for an appointment.



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From our law office in Wheaton, IL the family law and civil litigation law attorneys of Mirabella, Kincaid, Frederick and Mirabella, represent businesses and individual clients throughout the western suburbs of Chicago, Illinois including Wheaton, Naperville, Oak Brook, Glen Ellyn, Carol Stream, Lombard, Downers Grove, Burr Ridge, Lisle, Elmhurst, Oakbrook Terrace, Winfield, Woodridge, Warrenville and throughout DuPage, Kane and Kendall Counties.

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