<p>As one who didn’t advise talking to lawyers:</p>
<ul>
<li>Lawyers are expensive. They charge like $200 an hour just to get an opinion.</li>
<li>You don’t get your lawyer fee reimbursed if you don’t win</li>
<li>If the other person has no money, it’s very hard to collect money (whether you win or not)</li>
<li>Getting lawyers involved makes all negotiations immensely more difficult because everyone is on their guard. It complicates the situation and becomes messy.</li>
</ul>
<p>On the other hand, there is one really good reason to get a lawyer involved:
The other party has the means to pay but will not pay unless a court obligates him / her to do so.</p>
<p>The OP stated that the ex husband has unlikely saved any money for college because he wasted money 11 years ago. The OP stated that the ex husband’s wife liabilites are huge because she owns several houses, and it’s uncertain whether the wife’s assets exceed the liabilities. The OP has stated that there are 3 kids at home at the ex husband is taking care of. Nothing has been mentioned of what the ex husband does for a living, although I suspect he works odd jobs or is unemployed.</p>
<p>To me, that’s a pretty convincing case that the ex husband can qualify under the unable to pay for oldest daughters education escape clause that was written into the divorce decree. </p>
<p>Is this the morally right decision? No. Is this what I would do in the same position? No. Would I advise others of doing the same? No. </p>
<p>But do I think that getting lawyers involved is the best course of action? With the information provided, I can’t say that it looks very clear cut that a court would require him to pay.</p>
<p>**What I’m also saying is that everything we do requires time and energy.**Calling lawyers, rereading divorce decrees, talking with ex-husbands that you’d rather forget can be exhausting for many people. On the other hand, filling out scholarship applications and looking for other ways to pay for that room & board can be very fun and rewarding. For example, your daughter could be an RA where she would get free room & board at the school. It could lead to good mother/daughter bonding time, while calling attorneys and filing lawsuits can simply create agnst, anger, and frustration.</p>
<p>Please listen to DonnaL and JHS – the lawyers.</p>
<p>I am NOT a lawyer and will not directly respond to the issue at hand because I do not have the expertise.</p>
<p>However I will say that in one of my previous existences before I became an academic I worked in social work involving families. In my experience, family court judges are extremely unpredictable in their rulings, so outcomes don’t just vary by state and locality but also by judge and even mood of the judge on the day of ruling.</p>
<p>It is NOT A WASTE OF TIME AND ENERGY to pursue this.</p>
<p>OP should contact the original attorney who represented her during the divorce as a starting point to see what her options are and how likely she would be to prevail. Also, she shouldn’t have to put out a retainer right away. She could get an initial consultation to see how difficult her case would be. That would only cost 1 or 2 hours in fees, or could even be free.</p>
<p>bigtrees, you are right, too. Lawyers ARE expensive, and CAN complicate things. It is certainly possible to hire a lawyer, litigate, win, get a judgment, and be unable to collect it, and still have to pay your lawyer, and it’s even more possible to hire a lawyer, litigate, and not win any more than you could have gotten without the lawyer. And you know what? Any decent lawyer will advise you if he thinks that’s what’s likely to happen, or even if it looks possible.</p>
<p>In this case, if the OP does nothing, her kid gets nothing, and the OP is stuck holding the bag. There is a reasonable possibility that she could do something that would net her kid (and save her) at least several thousand dollars a year for four years. It’s well worth a few hundred bucks to find out for real (not for internet board) what her realistic options are.</p>
<p>Substitute the word prevail with the word collect, as in </p>
<p>
</p>
<p>Winning the case may be an emotional victory, but what the OP needs is a check written out to her for the 1/2 cost of education + attorney fees.</p>
<p>The problem is we all generalize from our own experiences, but it’s not true that situations always follow the patterns we are familiar with.</p>
<p>I would still want to hear from a professional. Then the OP can evaluate options.</p>
<p>When I was divorced from H1 (no kids) I saw two well recommended female attys. They advised me to do the opposite things.</p>
<p>One told me to fight in court; the other told me that judgments were too iffy and she wouldn’t advise it.</p>
<p>It was my choice. I chose not to fight in court but I chose the lawyer who told me I should. I liked her fighting attitude and I liked her. She accepted my decision unconditionally, and I have returned to her over the yearss on several legal matters.</p>
<p>Lawyers don’t force their clients into actions they don’t want to undertake.</p>
<p>IMHO that divorce agreement should have been more specific. That “if he is able” phrase is very vague and subjective. I am not a lawyer but now that the time has come to pay for college it would seem that lawyers and courts may be needed to sort the matter out. The amount he is ultimately responsible for seems a totally separate issue from where your daughter chooses to attend college.</p>
<p>There are two squishy terms in the language of the divorce agreement–that he’s to pay a “fair and equitable” portion of college costs and he’s to pay “if he is able.” If you can’t agree on what constitutes either or both terms with the fact situation at hand, then you’ll have to have a court (or arbitrator) settle it.</p>
<p>What concerns me is that he’s already behind on medical payments that he is required to make. What makes you think he’s going to pony up college expenses? </p>
<p>Hope for the best, but prep for the worst. I’d have a plan in mind that would ensure that my kids went to college even if dad didn’t contribute a dime.</p>
<p>OP- I haven’t read through the whole thread, so I don’t know if this has been specifically addressed: “Father lives in Miami (he’s Cuban and Costa Rican and claims all hispanic kids live with their parents in college)”</p>
<p>In much of Latin America students live at home and commute to school because the universities don’t have residence halls. Students who attend a university that is not in their home city either live with a relative, or in a private boarding house. Many first generation hispanic kids follow this same pattern because the local community college or commuter university is all they can afford. Some opt to commute because of cultural rather than economic reasons. However, many of these kids do live on campus. Heck, even when I was in college back in the '70s we had a number in the dorms of my LAC! By no means do “all hispanic kids” commute to college from home for four years.</p>
<p>Is there any chance that this is the dad’s way of saying that he wants the kid in Miami near him for college? That would be a question I’d ask.</p>
<p>This is the first hit I got Googling the topic. Granted, you shouldn’t rely on a law firm’s website content as absolutely authoritative or applicable to your fact situation; but the site looks credible enough to give you an idea of the issues Illinois courts consider (and certainly their receptivity to making a college support order–in your case, his original intent to provide college support is one factor in your favor).</p>
<p>FYI, there’s a uniform interstate child support collection act, so his OOS status is irrelevant. But there has to be a failure to pay an enforceable order before Florida collection efforts on an enforceable and unpaid Illinois order, e.g., wage assignment, bank garnishment, property liens, etc., would kick in.</p>
<p>Hope your original lawyer is still available and can help. Good luck.</p>
<p>Thank you everyone for your opinions and advice! Based on the wide array of opinions, it’s clear that this is an area where there isn’t an easy answer, and can vary from state to state. I have decided on an initial consultation with an attorney. It’s worth the money spent there to get sound legal advice, and even if it does not result in anything that I can pursue, at least I will have peace of mind that I checked. If things work, great, if not, then I will find a way to make it work - D will be easier than S but we will find a way. </p>
<p>A special thank you to TXArtemis above - this Illinois article will be helpful. I’ve heard of some court case outcomes at a personal level, not that the circumstances are the same as my case, but it gives me hope.</p>
<p>I am hoping for a good outcome for the OP and her children. If that cannot be had, then I hope this dad realizes that his decision will likely affect the long-term relationship he has with his kids. </p>
<p>In cases like these, it’s nearly impossible for his biological children not to harbor life-long resentment that their dad chose (obviously) to please his second wife and help with HER children over them. That’s a tough pill for any kid to swallow and not hold onto resentment. </p>
<p>Oh…and since the Hispanic dad is so into Hispanic traditions…remind him that traditionally, Hispanic dads do not divorce and remarry. That’s not traditional in the Hispanic culture.</p>
<p>That relationship has already been established. Whether he pays for college education or not, I don’t think that will influence the relationship since the OP says it is already cold and they don’t talk. </p>
<p>
</p>
<p>That’s water under the bridge since the divorce happened 11 years ago. It’s not relevant to the question at hand (will a family court require my ex-husband to pay for his daughter’s education) and will only bring up old emotions and incite anger. I would encourage focusing on the issue at the moment and not trying to fight battles that started long ago.</p>
<p>Nice the the Op specifically asked for our advice here, mentioning that we are not attorneys.
I hate to sound like I am defending attorneys, because i am well aware of their reputations(fairly or not) but here goes:
Let us remember contacting an attorney is far different than hiring one all the way to the Supreme Court. Some here are “jumping the gun” .
If step 1 is contacting an attorney, many will offer a brief consultation free. Even if one pays for an hour of his time, that is still a relatively cheap cost to get his legal advice. After the advice, one might choose not to pursue it further. Just like a doctor, one may desire a second opinion. The client is the customer and boss; the attorney, if hired, is his advisor and his employee. Contacting an atty does not necessarily mean hiring him for a big court battle.</p>
<p>I strongly disagree with a person or 2 here that advised OP consult the same atty that did the decree. He is the one that carelessly or purposefully left the huge “if able” escape clause. I would not feel confident with his advice.</p>
<p>The only relevant part of Dad being hispanic(as I see it) it that he is using that hispanic heritage as his reason not to pay, when he indicates - that’s not the way my people do it. Yet his life now isn’t the way “his people do it” according to post 52. Not a legal argument, but a moral one to Dad about his convenient timing to hold with traditions and breaking from traditions when that is more convenient.</p>
<p>Younghoss, it’s irresponsible to judge original counsel based on the order’s equivocal language.</p>
<p>To start, it’s the Court’s order. The Court signed it and thus either drafted or ratified the language. Further, bear in mind that the OP said the order was dated 1998–family laws are dynamic, and it is likely that many aspects of the order don’t reflect current law or practice. Finally, the website article to which I pointed the OP indicated illinois college support orders are not formulaic and do take into consideration many more factors, including a “bigger picture” analysis of ability to pay, than the “percentage of income” sort of orders that are commonly used for support of children to age 18 or other majority. Again, without placing undue reliance on that one article, it certainly suggests that orders made while kids are young aren’t expected to be clairvoyant re: their need for college support; rather, court involvement and review of all current circumstances are contemplated.</p>
<p>Note, also, that returning to original counsel as a starting point may turn up helpful evidence in the attorney’s file materials re: how the order of college support came about in the first place and what father’s stated intentions were at that time. </p>
<p>As you said, right now, it’s not a Supreme Court case. It’s simply a consult.</p>
<p>I should also add that orders for college support are of fairly recent development in American jurisprudence. Without knowing the extent to which Illinois legislative and common law guidelines were in place 12 years ago, it may well be that the order exactly tracked then-current authorities or was visionary for the times.</p>
<p>"it’s irresponsible to judge original counsel based on the order’s equivocal language. To start, it’s the Court’s order. The Court signed it and thus either drafted or ratified the language. "</p>
<p>The OP used the term “divorce agreement.” People usually don’t use the term “agreement” for something that was written by the court, even if a judge signed it. It’s a settlement contract. And a crummy one, as far as the OP’s interests are concerned. I wouldn’t pay another dollar to that attorney.</p>
<p>If the original attorney has evidence on file that’s of use to the OP today (like admissions by the NCP), she’s entitled to see it whether she re-hires him or not. Would you seek more treatment from the doctor who botched your surgery because your X-rays are still in his possession?</p>
<p>To the OP, I am glad that you are going to seek legal counsel. That will be the only way to find out what your chances are. I am an attorney too, and since I am not in your state, I can offer no specific advice on your case. That being said, even if “ability to pay” is wishy washy language, I will say that a good argument can and should be made that it does not include voluntarily bailing out a spouse’s business (i.e. if he is not on the notes) or paying for step children to whom he is not legally obligated (don’t the step children have a dad who is supposed to be paying for them?) or buying expensive cars etc. </p>
<p>To the poster above who speculated on NJ law, yes in NJ parents may be forced to pay for college even if it is not in the divorce decree, but there is more to the law than just that. In NJ there is even a case where an ex sued the deceased spouse’s estate and was able to get college expenses from the estate. The language in that decree was I believe that the the spouses would pay in proportion to their then incomes. Obviously the deceased had no income at that time, but the court said that the estate was responsible.</p>