I recently read an article on the differences in how Illinois appellate courts are split on whether or not a child of divorce has “standing” (legal term for the right to be in court asking for something) to enforce the college education provisions in his or her parents’ divorce decree. What does this mean in plain English? It means children’s claims as third party beneficiaries to force their parents to do what they agree to do in divorce decrees that require one or both of them to pay for college or other post-high school education. A third party beneficiary claim is simply the claim of someone who is not a party to a contract but whom the contract is supposed to benefit. While the analysis by courts who have allowed children to make third party beneficiary claims to force their parents to pay for college rests on real legal principles, it raises parenting issues that divorcing parents rarely consider.
It is clear that children of non-divorced parents have no legal right to force their parents to provide them with higher education, at least not yet. Whether or not to fund college is a family financial decision as well as a parenting decision. Not all children appreciate higher education. Some use college as a four year license to live “independently” on their parents’ nickel and to postpone their obligation to support themselves. If the courts or the legislature takes away the parental prerogative to deny funding for higher education to children who don’t apply themselves in school, the courts are stepping into an area that goes beyond allocating the costs for an education that both parents agree upon. Instead, they are substituting their parenting judgment for that of the parent. Why should parents of divorce be the only ones subject to this type of parenting intervention?
Another situation with similar potential for undermining parental prerogatives is the one that arises when one parent is concerned about the other parent’s remarriage and wants a Marital Settlement Agreement to include mandatory estate planning provisions benefiting children of the marriage. This can lead to thrusting the management of wealth on children who lack the maturity to deal with. It can also foster an unintended sense of entitlement and lead to the same type of third party beneficiary claims.
While debates over parenting philosophies can go on indefinitely, the practical question really is, what can parents who wish to preserve their parental decision-making prerogatives do when drafting their divorce agreements? While the courts and the legislature may ultimately decide otherwise, parents who wish to be cautious about creating entitlements in their children can include provisions in their Marital Settlement Agreements stating that they do not intend there to be any third party beneficiaries to their contracts. They can also recite that with respect to college, there needs to be a parental agreement or an order of court that the child is deserving of the education before parents can be ordered to pay.
Parents should also give serious consideration to eliminating requirements that a parent be found to have the ability to pay for an education before he or she is ordered to do so. The unpredictable financial events of recent years have made what was once an unthinkable prospect a stark reality, namely parents who had every intention of paying for college could not afford to keep a roof over their heads. There is often pressure on the parent(s) with financial means at the time of divorce to remove the “ability to pay” condition. Once removed, the “ability to pay” condition can’t provide the intended safety net for the parent who suffers an unexpected financial reverse.
An added bastion against a parent finding him or herself in the position of guaranteeing an education is the specification of the type of the institution a child may attend and whether the contribution is limited to the cost of an in-state college education or whether it may include private school or out-of-state tuition. Parents should remember that they are always free to do more than what they are obliged to do by court order but that once an obligation becomes part of a Judgment, they need to show unforeseeable and/or changed circumstances to vary from what is required.
For parents with young children, even if, at the time their decree is entered they foresee having the financial wherewithal to afford the education, they might be better off indicating that if they are found to have the wherewithal to pay, they will allow the court to make a determination in accord with the statutory factors. This will insure that they don’t find themselves in a position of having a commitment but not having a child who will appreciate the benefit or the resources to pay for the commitment when the time comes.