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Accepted: The Constitutionality of Section 513 of the IMDMA

Post Authored By: Shannon Luschen

Illinois is only one of a handful of states where courts may require parents to contribute to their child’s college education.  This “non-minor support” is codified in Section 513 of the Illinois Marriage and Dissolution of Marriage Act and applies to those parents who are undergoing a divorce, have already been divorced, or were never married. Pursuant to this statute, the court may order certain educational expenses to be paid either to the child, the other party, or directly to the institution itself.  These expenses include the following:

  1. Tuition and fees[1]
  2. Housing expenses, whether on or off campus
  3. Medical expenses, including medical insurance
  4. Reasonable living expenses during the school year and during periods of recess
  5. Costs of books and other school supplies

The provision was first enacted in 1977, and shortly thereafter, it faced its first constitutional challenge in Kujawinski v. Kujawinski. This challenge was based on the argument that divorced parents and non-divorced parents were being treated differently under the law since non-divorced parents were under no legal obligation to contribute to their children’s college expenses.  In 1978, the Illinois Supreme Court found that the obligation of divorced parents to contribute to college expenses was reasonably related to a legitimate legislative purpose in “’mitigat[ing] the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.’”  Kujawinski v. Kujawinski, 71 Ill.2d 563, 579 (1978). The court believed that children of divorced parents inherently faced more challenges and financial hardship than children of non-divorced parents.  Accordingly, the court upheld the constitutionality of Section 513.

More recently in 2019, the Illinois Supreme Court reconsidered the constitutionality of this provision again in Yakich v. Aulds.  In this case, the parties were never married but had a daughter together.  The mother filed a petition under Section 513 and asked that the father contribute to the daughter’s expenses.  The father objected, claiming he should not have to pay since he had not been involved in the college selection process. The trial court further explained that since married parents are not obligated to pay for their children’s college, they can influence where the children ultimately go to school.  Unmarried parents, on the other hand, are deprived of that influence since they are under this obligation to contribute to their children’s college. Ultimately, this issue raised equal protection concerns yet again, and the trial court found Section 513 to be unconstitutional. Further, the trial court held that the rationale behind Kujawinski was “no longer tenable” in today’s society.  Yakich v. Aulds, 2019 IL 123667.

The Illinois Supreme Court ultimately vacated the trial court’s order in Yakich stating that it had no authority to overrule and ignore the longstanding, legal precedent established in Kujawinski. While the trial court seemed to think that this precedent was outdated and no longer applied in a modern world, the Illinois Supreme Court remains the only court able to overturn its own precedent.  It further stated, “[r]egardless of the impact of any societal evolution that may have occurred since we issued our decision in Kujawinski, that holding remains directly on point here, and the trial court committed serious error by not applying it.”  Id. at ¶ 13.

Every now and again, litigants still try and challenge the constitutionality of Kujawinski and Section 513.  In 2020, the court in Budorick rejected the same argument that Section 513 violates the equal protection clause because it treats married and divorced parents differently under the law.  Like in Yakich, the court also rejected the argument that “’societal changes’ since 1978” have rendered the rationale of Kujawinski – namely, the idea that children of divorced or never married parents are more disadvantaged than children of married parents and are less likely to receive financial assistance – obsolete.  In re the Marriage of Budorick, 2020 IL App (1st) 190994.  Further, the trial court in Budorick recognized that even if it did agree that 513 was unconstitutional for the reasons stated above, it had “no authority to depart from supreme court precedent.”  Id. at ¶ 86.

[1] Note: This expense is capped at the amount of in-state tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for that same academic year.

About The Author:

Shannon Luschen is an associate with Feinberg Sharma in Chicago, which focuses exclusively on family law matters. Shannon received her undergraduate degree at the University of Wisconsin-Madison undergrad and her J.D. at Chicago-Kent College of Law, where she graduated cum laude.

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