Children of Divorced Parents Can Sue for College Expenses

In Illinois the Court’s generally assume parents will adequately represent their children’s interests.College fund savings See Payla v. Payla, 87 Ill.App.3d 472 (3rd Dist. 1980). However, Illinois also has allowed children, albeit over the age of 18, to sue their parents for college education expenses. The issue is one of standing and whether a child, not a party in the legal proceeding, is either a party-in-interest or has rights that he or she may be enforced emanating from the dissolution of the parent’s marriage See: In Re Marriage of Orr, 228 Ill.App.3d 231 (1st Dist. 1992); In Re Marriage of Miller, 163 Ill.App.3d 602 (1st Dist. 1987).

Children of an intact family have no right to sue a parent to require him or her to provide that child with a college education. Because of a perceived special need to protect children of divorce, §513 of the Illinois Marriage and Dissolution of Marriage allows a Court to mandate divorcing parents pay for educational expenses. This doesn’t necessarily mean the Court will. The Court is required to consider the financial resources of the parents and the child as well as the child’s academic performance.

Even in an instance parents do not pursue these benefits on behalf of their child, a child can sue a parent for these expenses. A more recent case highlighting this point is In Re Marriage of Spircoff, 2011 IL App (1st) 103189. While Spircoff is usually cited for the issue of how far back can a person go to collect college expenses from the other spouse (a whole separate dilemma), the Court is Spircoff addressed children suing parents:

“As a preliminary matter, we note that it is clear that an adult child of divorced parents has standing to enforce the educational provision of the divorce decree on the basis that he or she is a third-party beneficiary. Orr v. Orr, 228 Ill.App.3d 234, 238, 170 Ill.Dec. 117, 592 N.E.2d 553 (1992); Miller v. Miller, 163 Ill.App.3d 602, 612, 114 Ill.Dec. 682, 516 N.E.2d 837 (1987). Moreover, children who are beneficiaries under a contract entered into by their parents have standing to bring suit against their father to compel his compliance with the contract terms. Orr, 228 Ill.App.3d at 238, 170 Ill.Dec. 117, 592 N.E.2d 553.”

Some persons have thought as part of a litigation strategy or for some other reasons it is a wise idea to try to involve their children in litigation, hiring attorneys for them and trying to use them as a tool to harass the other parent. Besides being morally repulsive to some people, the use of children (even adult children) in this manner is not well received and usually backfires See Singer v. Brookman, 217 Ill.App.3d 870 (1st Dist. 1991). Unless there is a compelling case for such a suit, the Courts do not hesitate to implicitly look at questions of harassment, the motivations of the child and/or whether the other or former spouse is pursuing an agenda through the child.

This entry was posted in Child Support, College Expenses, Divorce and tagged , .
Timothy M. Daw

About Timothy M. Daw

Mr. Daw, a partner of Schiller DuCanto & Fleck LLP, litigates complex financial/custody cases. Mr. Daw has over 25 years of experience in family law. He received his Bachelor of Science in Business Administration from the University of Illinois at Champaign/Urbana. He received his Juris Doctorate degree, with distinction, from DePaul University College of Law.

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