The Second District Appellate Court recently found that social security disability income can be used to satisfy an obligor’s duty to fund college expenses. In re Marriage of Truhlar, 2010 WL 3667117 (2nd Dist. Sept. 17, 2010), the parties had agreed, at the time of their divorce in 1994, to contribute to the cost of their children’s college educations based on their respective abilities to pay at the time that each child graduated from high school. In 2008, the Mother filed a Petition seeking contribution to their daughter Ashley’s higher education expenses. Ashley had been admitted to National Louis University, had obtained grants and scholarships, was working part time, and was living at home as a cost saving measure. The Father’s only source of income at the time of the Petition was social security disability benefits. The Father argued, and the trial court agreed, that his social security benefits were beyond the reach of creditors under applicable federal law, and therefore could not be attached for the purposes of contributing to his daughter’s college expenses. Accordingly, the trial court found that it was without authority to order the father to contribute to Ashley’s college expenses and the Mother appealed.
The Appellate court began its reasoning by noting that under the Social Security Act (“the Act”), social security income can be attached for the limited purpose of “paying support or maintenance of a child”. The critical issue was whether payment of college education expenses after a child reaches majority can constitute “support of a child.” The Appellate Court found, first that the obligation to care for one’s child normally ends when the child reaches the age of majority. Further, there were no reported decisions in which an obligation to contribute to a child’s college expense had been found to be “support of a child” under the Act. Bankruptcy courts, however, have held that debt incurred for the expenses of a college education is excepted from discharge if the college expenses can reasonably be construed as child support. The Appellate Court reasoned that since federal bankruptcy courts have already recognized that orders requiring one or both parents to contribute to a child’s education can qualify as child support, college education expenses should be considered “support of a child” under the Act as well. Accordingly, the Father’s social security disability income was not exempt from attachment for purposes of paying college expenses.