Sorry Soc, another college support question...

[Hazel]

The state is Illinois.

Divorce decree, signed in 1987, clearly states that child support will end when child graduates from high school...  But the next paragraph states that "parents will contribute to college education based on their ability to pay and the child's aptitude and desire for higher learning."  We have an ability to pay and the child's grades are fine.  (Problem is, we have no desire to pay...)  Child will be graduating from high school in June '05.

DH has paid over $55,000 in child support in the past 6 years alone for one child.  He's never been late, and has never missed a payment in 17 years.  Child support is currently $1100.00 per month.  Child wants to live with Mom and attend a community college that will cost approximately $2000.00 per year.  (But of course Mom will want us to pay her for "living expenses.")

We do not wish to contribute to college financing, because we feel that we've already paid more than enough, and that this very "entitled" child will be better off if she works her way through.  We have no intention to give our other children free rides at college time, either.

1) Due to the ambiguity in the original decree, could we legally consider the exhorbitant child support amount we've already paid to be our "contribution" to college costs?  (Yes, I know you're probably laughing at this and that I'm grasping at straws here.)

2)  Is there any chance that we'll be ordered to continue full child support for the next 4 years?

3)  What do you think will really happen if he is ordered to pay and refuses to do so?

4)  If you were in our shoes, would you fight this to the extent of going to jail, or would you give in?


Thanks so much for what you do here, Soc.  ;)


Kindest Regards,
Hazel
;)

[socrateaser]

>1) Due to the ambiguity in the original decree, could we
>legally consider the exhorbitant child support amount we've
>already paid to be our "contribution" to college costs?  (Yes,
>I know you're probably laughing at this and that I'm grasping
>at straws here.)

Unfortunately, no. The judgment for support becomes a property right of the other parent at the moment each payment is due and payable. So, the money you have paid, although it certainly feels like it's yours, is legally hers, just the same as if you had bought a set of fine china, and each month, even though the pieces were all still sitting in your buffet, someone else was obtaining a receipt from the store for each individual piece.

>
>2)  Is there any chance that we'll be ordered to continue full
>child support for the next 4 years?

I've never set foot inside an IL courtroom, so I have no clue about how judges handle this sort of thing there. However, I do know that IL law bases college support on the cost of the education, rather than the ability of the parent to pay for them. So if the kid is going to a community college, you should be able to argue that he/she doesn't need as much support as before. Obviously, if the child was headed to Harvard, you'd be in the soup.

I mentioned before, that I believe adult child support violates the "takings clause" of the U.S. constitution, but I don't think you can afford the cost of trying to appeal, and even if you did, the chances of getting a court to see it my way is pretty slim.
>
>3)  What do you think will really happen if he is ordered to
>pay and refuses to do so?

He will build up arrears that will ruin his credit and follow him wherever he goes for the rest of his life. Don't do it.
>
>4)  If you were in our shoes, would you fight this to the
>extent of going to jail, or would you give in?

I'm not in your shoes. Civil disobedience, in my opinion, must serve some clear public value that the news media is likely to widely support -- otherwise engaging in it is largely like cutting your toe off and wearing it on a necklace for everyone to see. It hurts like hell, and it gets some attention, but nobody really cares.

[rachaelmomma]

Hazel,

I would check with an Divorce Law Atourny in your state.  I am in GA and as far as our Lawyer can tell us, even though my DH's CS order states that he is responsible for the college expenses of my SD, he can not be forced to pay it if we are unable to at the time she goes to college and have made an attempt when possible to provide for this.

We started a 529 and put money in it when we can.  We may not be able to pay all of her college (and I am sure that BM will have a hissy about this) but our lawyer states that the courts can not force bio parents who are not devorced to pay for a child's adult education and therefore the courts can not force a divorced parent to pay for a child's adult education.

If we can't afford it, we won't pay it.

So my suggestion is to check with a good divorce law atourney in your area and have them do some checking and give you some advice.

If the lawyer thinks it is in your best interest to pay then pay tuition directly to the school, not to the child or the child's mother.  The mother's contribution can be room and board. The paper's did say "the parent's ability to pay" did it not?  In my opinion, if the BM can not pay with $ then  she can defenately pay with room and board.

I would have to disagree with SOC on this one (however I am not a laywer) and say that you should get some Illinois legal advice and start shaking some foundations if needed.  

Child Support laws will not ever change if we do not question them and force their unfair and rediculousness into the public and court eye.

JM2C (these are my personal opinions and should not be taken as legal advice)
R

[socrateaser]

>I would have to disagree with SOC on this one (however I am
>not a laywer) and say that you should get some Illinois legal
>advice and start shaking some foundations if needed.  

Comments:

1. Please cite a past quote where I advised someone to not obtain legal advice from an attorney licensed to practice in the forum with jurisdiction over that person's case?

2.  Several state supreme courts have taken up the question of the constitutionality of adult child support for post-secondary educational purposes (PA, NH, MO, OR). All of those challenges were based upon the legal theory that college age support violates the equal protections clause of the 14th Amendment to the U.S. Constitution. PA was the first case, and its state supreme court ruled college age child support an unconstitutional violation on grounds that the State was attempting to force unmarried/divorced parents to pay for something that it could not force married parents to pay for, and that doing this was not reasonably related to a legitimate government interest.

In my opinion, that case was wrongly decided, and the other three state supreme courts that have taken up the question have agreed, i.e., it is reasonable to believe that a divorced or never-married parent is far less likely to want to contribute to their child's college education, than is a married parent, and therefore the government has authority to force that parent to pay.

Now, if someone like me, who is an advocate for massive change of our family law system, believes that this theory, which is the exact theory that your GA attorney is promoting, is a loser theory, and that anyone who takes it up is destined to lose their appeal, then what do you think that person's chances are with the IL or GA state supreme courts, both of which have a far more conservative view of the law than me?

There is a possibility that college age child support can be challenged under the 5th Amendment's "takings clause," but the theory that your GA attorney is promoting is going to cost some unwary layperson about $20,000 in appellate legal fees to discover that they were wasting their time.

But, hey, it's your money, however, if it were me, I'd just use that $20K to pay down my mortgage and get closer to a debt-free home. That's a lot safer bet.

In conclusion, the poster definitely should consult with a local attorney about the possibility of challenging the college-age support law in IL. But, if the law is challenged under the same theory that has already been tried 4 times before, that challege has an expected value outcome of -50%!

And, that is one lousy gamble in my opinion.

[Hazel]

I keep thinking about the "toe necklace":-) LOL, and I think we'll just pay up.

Originally, we had every intent on making DH the "poster child" for the unconstitutionality of college support, but in reality, we're looking at going from 1100.00/mo in child support to, at most, 300.00/mo in college support.  (Community college.)

You're right, Soc - paying 20K to fight that WOULD be like cutting our toe off and wearing it on a chain.  In addition, there are few, if ANY, attorneys that would be willing to go the distance on this.  We all know that they like to keep the status quo.

I don't like it, but at least the child has to actually DO something for the money, and it certainly won't be a cake walk for her...  And an added benefit is that she will not be able to blame her Father for the absence of a college degree.  She will be given a golden opportunity, and it will be oh so interesting to see how she uses it.

We will absolutely have an agreement in writing that will clearly state the conditions for our support.  If you have the time, feel free to advise as to what this document might look like, and what stipulations will have legal merit.  I've had great difficulty finding pertinent case law.

Best Regards,
Hazel

[socrateaser]

I appreciate rachael's input ito the problem, although I think her attorney is not being entirely honest about the difficulty of winning this particular argument in court. People must marshall their resources and choose their battles. Sometimes you just have to cut your losses and move on -- difficult as that may be.

[rachaelmomma]

Soc,

So then do you think that if a divorced parent has made an effort to pay for the college education of the child and that parent then looses a job or otherwise is unable to fully pay for the education then that parent SHOULD be FORCED to go into debt to pay for this education when the biological mother has contributed $0 to the child's higher education and is just as capable if not more so to contribute??

(remember we have started a 529 and HAVE been contributing to it)  

(my SD is 7 -- we anticipate that if we can continue to put up $100/month we will be able to pay about $30,000 with that even if there is no large gain in the principal that we have invested and the financial planner estimates a minimum of $70,000)  

I just don't understand how this can be fare to the parent who has done all that they can do to provide for the child.

Our lawyer's view was that as long as we show we are trying we can not be forced.  So then is he wrong or is this just a hot topic for prolonged and agonizeing debate??

R

[socrateaser]

>So then do you think that if a divorced parent has made an
>effort to pay for the college education of the child and that
>parent then looses a job or otherwise is unable to fully pay
>for the education then that parent SHOULD be FORCED to go into
>debt to pay for this education when the biological mother has
>contributed $0 to the child's higher education and is just as
>capable if not more so to contribute??

If you've read my board for any period of time, then you know I don't take moral positions. If the law of a jurisdiction makes it lawful to charge you for your child's college education, then it doesn't matter what I think "should" or "shouldn't" be -- it's the law, so your elected representatives have chosen to make this public policy,i.e., they have decided that they are "right," and you...are "wrong."

If you don't like the law, then start a petition and demand that the law be repealed.

People just don't seem to understand that the power to pass legislation is a very dangerous thing. We pass laws in this country like we pass gas -- and then, we pay for our repeated ignorance by having indigestion forever -- as once a law is passed, it's damn near never that it gets reversed.

>Our lawyer's view was that as long as we show we are trying we
>can not be forced.  So then is he wrong or is this just a hot
>topic for prolonged and agonizeing debate??

I haven't read the GA statute on adult child support, so I can't consider your circumstances at this moment. Every jurisdiction has a different law on this issue.

IL is very straightforward. The child can get support from either or both parents until he/she receives a bachelor's degree.

I believe that the IL, as well as the laws of OR and MO and NY on this issue, violate the takings clause of the 5th Amendment to the U.S. Constitution. But, until I read the GA statute on the issue, and research the issue thoroughly, I cannot determine if you'd have a shot at a constitutional challenge.

One thing I know for certain. None of the laws that I've reviewed in the past have ever been threatened by the legal theories used to challenge them, so I'm guessing that if your attorney is betting the farm (your farm, not his), on an equal protection/due process challenge, then, my opinion is that he's just picking your pocketbook.

[rachaelmomma]

Soc,

So then do you think that if a divorced parent has made an effort to pay for the college education of the child and that parent then looses a job or otherwise is unable to fully pay for the education then that parent SHOULD be FORCED to go into debt to pay for this education when the biological mother has contributed $0 to the child's higher education and is just as capable if not more so to contribute??

(remember we have started a 529 and HAVE been contributing to it)  

(my SD is 7 -- we anticipate that if we can continue to put up $100/month we will be able to pay about $30,000 with that even if there is no large gain in the principal that we have invested and the financial planner estimates a minimum of $70,000)  

I just don't understand how this can be fare to the parent who has done all that they can do to provide for the child.

Our lawyer's view was that as long as we show we are trying we can not be forced.  So then is he wrong or is this just a hot topic for prolonged and agonizeing debate??

R

[socrateaser]

>So then do you think that if a divorced parent has made an
>effort to pay for the college education of the child and that
>parent then looses a job or otherwise is unable to fully pay
>for the education then that parent SHOULD be FORCED to go into
>debt to pay for this education when the biological mother has
>contributed $0 to the child's higher education and is just as
>capable if not more so to contribute??

If you've read my board for any period of time, then you know I don't take moral positions. If the law of a jurisdiction makes it lawful to charge you for your child's college education, then it doesn't matter what I think "should" or "shouldn't" be -- it's the law, so your elected representatives have chosen to make this public policy,i.e., they have decided that they are "right," and you...are "wrong."

If you don't like the law, then start a petition and demand that the law be repealed.

People just don't seem to understand that the power to pass legislation is a very dangerous thing. We pass laws in this country like we pass gas -- and then, we pay for our repeated ignorance by having indigestion forever -- as once a law is passed, it's damn near never that it gets reversed.

>Our lawyer's view was that as long as we show we are trying we
>can not be forced.  So then is he wrong or is this just a hot
>topic for prolonged and agonizeing debate??

I haven't read the GA statute on adult child support, so I can't consider your circumstances at this moment. Every jurisdiction has a different law on this issue.

IL is very straightforward. The child can get support from either or both parents until he/she receives a bachelor's degree.

I believe that the IL, as well as the laws of OR and MO and NY on this issue, violate the takings clause of the 5th Amendment to the U.S. Constitution. But, until I read the GA statute on the issue, and research the issue thoroughly, I cannot determine if you'd have a shot at a constitutional challenge.

One thing I know for certain. None of the laws that I've reviewed in the past have ever been threatened by the legal theories used to challenge them, so I'm guessing that if your attorney is betting the farm (your farm, not his), on an equal protection/due process challenge, then, my opinion is that he's just picking your pocketbook.