Do New Spouses Have An Obligation To Contribute To College Expenses?

Clients often ask if their new husband’s or wife’s income will be considered when determining that parent’s contribution to his or her child’s college expenses?  After all, the new spouse is unrelated to the client’s child and has never committed him or herself to sending the child to college.  Why would a court consider the new spouse’s income when deciding how much a parent should contribute?

The short answer is that a court is concerned with each household’s ability to contribute to a child’s college expense.  A court will look at both parents’ income, as well as the income of both parents’ new spouses, and the expenses of the minor children from the new marriage, when determining a parent’s ability to contribute to a child’s college expenses.

There is sparse case law on this topic.  However, courts have been consistent in their handling of this issue.  For example, in In re Marriage of Drysch, the issue before the Second Circuit was:

“whether Vicky’s current husband’s income constitutes part of her ‘financial resources’ so as to be considered by the trial court pursuant to section 513. To resolve this issue, we must determine the meaning of the term ‘financial resources’ for purposes of section 513(b)(1) of the Dissolution Act.”[i]

The Second Circuit reasoned that:

“The plain language of section 513(b)(1) states that the trial court shall consider ‘the financial resources of both parents.’ 750 ILCS 5/513(b)(1) (West 1998). The term ‘resources’ has been defined as ‘[m]oney or any property that can be converted to meet needs” as well as the ‘available means or capability of any kind.’ Black’s Law Dictionary 1179 (5th ed.1979). Based on the use of the word ‘resources,’ rather than a more narrow term, such as ‘income’ or ‘salary,’ we believe that the legislature intended that the trial court consider all the money or property to which a parent has access. This may include that parent’s income, her property and investment holdings, as well as money or property that could be available to her through her new spouse.”[ii]

The Court went on to provide support for its position.  Specifically, the Court relied on the First District case of Greiman v. Friedman.[iii]

“In that case, the wife filed a post decree petition requesting that the husband be required to continue paying the college expenses of their three adult daughters. Greiman,90 Ill.App.3d at 942, 46 Ill.Dec. 355, 414 N.E.2d 77. At the hearing on the petition, the husband sought to admit into evidence his expenses for raising his second family, and the trial court refused. Greiman,90 Ill.App.3d at 947-48, 46 Ill.Dec. 355, 414 N.E.2d 77. On appeal, the reviewing court reversed, holding that the trial court erred in precluding the husband’s evidence of his liabilities because section 513 requires that the financial resources of both parents be considered. Greiman, 90 Ill.App.3d at 948, 46 Ill.Dec. 355, 414 N.E.2d 77. The reviewing court additionally found that it was important for the trial court to hear further evidence on the parties’ complete financial circumstances. Greiman, 90 Ill.App.3d at 949, 46 Ill.Dec. 355, 414 N.E.2d 77. The reviewing court explained:

‘Realistically, it is likely that both parties pool their resources with those of their second spouses, so that their assets and liabilities are substantially intertwined. Allowing the parties to submit detailed information of their finances will permit the trial court to reach a more principled, and thus more equitable, determination of the share that each party should contribute.” Greiman, 90 Ill.App.3d at 949, 46 Ill.Dec. 355, 414 N.E.2d 77.’”[iv]

This issue was also addressed by the Third District in the case of Street v. Street.[v]  In Street, the father cited Drysch in support of his argument that spousal income should be considered in determining each parent’s contribution to the minor child’s college expenses.[vi]  The mother argued that while Drysch permitted a court to consider either parent’s spousal income, it did not mandate that a court to consider it.[vii]

The Third District disagreed with the mother’s suggestion.  It held:

“Given this analysis and the current trend of the law on this issue, we believe that the better rule of law is to follow the Drysch decision. Therefore, we find in the present case that failing to consider Carl’s income and assets to the extent they are or can be used to contribute to Linda’s expenses constitutes an abuse of discretion. We reverse the trial court’s ruling on this issue and remand this case for further discovery regarding Carl’s income and assets, and for further hearings regarding Linda’s ability to contribute to Austin’s college expenses.”[viii]

Conclusion

It is well-established that a court will consider a parent’s household income, and also expenses of the children from the new marriage, when determining both parties’ contribution to a minor child’s college expenses.  While there are no First District cases directly on point, it is likely a trial court and the First District would follow the prevailing views on this topic.

 


[i] In re Marriage of Drysch, 314 Ill.App.3d 640, 644 (Ill. App. 2nd 2000).

[ii] In re Marriage of Drysch, 314 Ill.App.3d 640, 644-645 (Ill. App. 2nd 2000).

[iii] Greiman v. Friedman, 90 Ill.App.3d 941, 949 (Ill. App. 1st 1980).

[iv] In re Marriage of Drysch, 314 Ill.App.3d 640, 644-645 (Ill. App. 2nd 2000).

[v] Street v. Street, 325 Ill.App.3d 108 (Ill. App. 3rd 2001).

[vi] Street v. Street, 325 Ill.App.3d 108, 113 (Ill. App. 3rd 2001).

[vii] Street v. Street, 325 Ill.App.3d 108, 113 (Ill. App. 3rd 2001).

[viii] Street v. Street, 325 Ill.App.3d 108, 114-115 (Ill. App. 3rd 2001).

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