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Educational Expenses After High School -- (Such as College and Trade School)
Law Firm, P.C., Woodstock, Illinois © 2012-13
Q:In Illinois, can divorced parents be required to pay a portion of the children's educational expenses after high school -- such as the expenses for a four year college degree?
A:Yes. But Illinois is in the minority of states in this regard. In only 17 states including Illinois can a parent be forced to pay for what is often called “post-high school educational expenses.” Illinois law limits this expense to the time period before a child obtains a baccalaureate degree.
Q:We reserved the issue of college expenses in our divorce judgment. When would have to bring a petition if my ex-husband does not agree to contribute to his fair portion of college expenses?
A:If the obligation to contribute toward post-high school educational expenses was merely reserved, you must file a petition seeking these expenses in order to get relief. Based upon a critical 2010 Illinois Supreme Court Petersen decision, 403 Ill.App.3d 839 (1st Dist., 2010) one generally cannot obtain post-high school educational expenses for the time period before you file a petition -- when there was a mere general reservation of such expenses. But keep in mind that there are exceptions to this generally rule and it is critical to consult with a lawyer on this topic and act promptly. More recently, in 2011 IRMO Chee case the Illinois appellate court did not set a bright line rule and stated in alternatively, "The circumstances were similar to those in In re Marriage of Bennett, 306 Ill. App. 3d 246, 713 N.E.2d 1268 (1999), in that most of the children’s educational expenses slightly predated the petition for dissolution and could have been properly considered during the pendancy of the suit contemporaneously with other ancillary issues such as the division of marital property." Because of the impact of Petersen and the case law coming after it, the safest course is to petition for apportionment of the expenses before the expenses are incurred if there is any significant possibility of a dispute.
Q:What about parents who were never married? What is the law regarding college education that applies to paternity proceedings?
A:It is not clear cut whether the same law necessarily applies to divorce and paternity proceedings. Significant portions of Illinois divorce law are incorporated (considered a part of) the paternity law. Illinois statutory law regarding paternity does not expressly provide that a party can be ordered to pay for expenses of a child following graduation from high school. Nevertheless, there is one Second District 1988 case holding that the provisions of Section 513 (college expenses, etc.) should apply to paternity proceedings. See: Rawles v. Hartman, 527 N.E.2d 680.
Q:Does an award of custody have any impact on the issue of payment of educational expenses after college?
A:No. But if a child is living at home with one parent and commuting to a local college or trade school, this may impact the issue of payment of post-high school educational expenses. The phrase in Illinois divorce law which allows for a contribution to such expenses refers to “living expenses during the school year and periods of recess.”
A:The statute states that the payments may be payable to the child, to either parent or to the educational institution.
Q:What standards does the court use to determine the obligation to pay for post-high school educational expenses?
A:The standards are 1) the financial resources of both parents and of the child; 2) the standard of living the child would have enjoyed had there not been a divorce; and 3) the child's academic performance.
Q:If both parents have incomes, will the obligation to pay for post-high school educational expenses be in proportion with those incomes?
A:Generally the answer is that the obligation is not directly proportional to incomes. The financial resources of each parent mean not only the parents' incomes but their assets – that is, their estates. Another important factor is the child's financial resources. This often comes into play in cases where there are custodial accounts, college bonds or other funds that have been set aside for the children.
A:Illinois law now provides that, “the authority under this Section ... terminates when a child receives a baccalaureate degree.” There is little case law in Illinois addressing whether the obligation may extend to a fifth year if the child does not obtain a degree within a four year period. Well crafted marital settlement agreements agreements address this issue.
Q:If the children are young, will the court generally determine the percentages to be paid by each parent toward post-high school educational expenses at the time of the divorce?
A:Generally, no. If the children are young, I have found that most courts will simply reserve the issue of how expenses for post-high school educational expenses are divided. The belief is that circumstances may change very significantly and that therefore it may be premature to address the issue until a child is nearly ready to graduate from high school. But, be aware of the impact of the 2010 Petersen Supreme Court decision. Following Petersen, many fall into the trap of not timely filing a petition for payment of college (read post-high school education) expenses when there is a mere reservation of this obligation.
Q:You stated above that one of the considerations is the academic performance of a child. What if the other parent or the child refuse to provide such academic information?
A:The law now provides that if payment of educational expenses are ordered, each parent and the child is to sign any consents necessary for the educational institution to provide the supporting parent with access to the child's academic transcripts, records and grade reports. The statute also states that, “Failure to execute the required consent may be a basis for a modification or termination of any order entered under this Section.”
A:No. Illinois case law has a preference for in-state schools. I have found that it is unusual for a party to be ordered to pay for out-of-state schools, except in cases involving a very high wage earner, involving a very large estate or in certain other limited circumstances. Most well drafted marital settlement agreements will provide a benchmark school which will establish the most expensive school a child may attend. In the counties where I practice, including McHenry County, I have found that common benchmarks include the University of Illinois at Champaign-Urbana or Northern Illinois University.
Q:Is the obligation to pay for educational expenses limited to college or may it include other educational expenses?
A:The divorce law in Illinois is not limited to college expenses. The law states that it applies to “college education or professional or other training after graduation from high school.” As stated above, it does not include expenses after the receipt of a B.A. It might include expenses for a trade school – but only if this option is not eliminated by the terms of an agreed upon marital settlement agreement.
Q:Can a parent be ordered to pay for medical expenses and medical insurance while a child attends college?
A:Yes. Illinois divorce law includes medical expenses as expenses the court may require the parties to pay, including medical insurance and dental expenses.
A:Illinois statutory law does not explicitly mention financial aid as a consideration for the court. But financial aid packages are often considered by the court. For example, assume that a child applies to an out of state school but that after the financial aid package is applied, the overall cost is significantly less expensive than the cost for an in-state school. The critical financial aid document that is presented to schools is called the Free Application for Federal Student Aid (FAFSA). The deadlines for individual school's consideration may differ from the deadline for submission of the FAFSA.
Q:What about an educational trust? Will the court require the parties to a divorce to contribute to an educational trust for the children?
A:Generally, the answer is no. But parties occasionally negotiate the terms for payment of funds toward such things as Illinois college savings bonds, custodial accounts, and so called 529 plans, to be included in a marital settlement agreement or an agreed order.
Q:Well, my child is the age of 19 but he is still attending high school because he was held behind. Can my spouse be required to contribute toward his living expenses?
A:The law provides that court's authority to provide for payment of educational expenses extends, "not only to periods of college education or professional or other training after graduation from high school, but also to any period during which the child of the parties is still attending high school, even though he or she attained the age of 19." It is critical to consult with a lawyer for further advice in this regard because it is a complex issue which often depends upon the interplay of the current law and the terms of any marital settlement agreement (or divorce decree).
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law Firm's practice is generally limited to McHenry County, Lake County, Kane County and Boone County, Illinois.
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Gitlin Law Firm, P.C.
Updated: November 6, 2012
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