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Post-Secondary Education (College Education and Divorce)

Post High School Education in Illinois Divorce and Paternity Cases

Under Illinois divorce law, a court can order a parent to pay for a child's college education.  Illinois is in the minority of states where this can be ordered without an agreement between the parents.  Illinois divorce and paternity law calls this technically “post-high school educational expenses” because it is not necessary limited to college.  College expenses and court orders to pay expenses are, for some purposes, considered like child support in Illinois.  The law does, however, set the factors the court should consider and provides some limits to the parental obligation for college expenses.

Is it likely that the obligation for post-high school education or training will last more than four years?

Generally, no.  Authority under the 2016 law for the court to impose an obligation to pay for college ends once a child “attains the age of 23, receives a baccalaureate degree or marries.”  Only for good cause shown (or an agreement) can it be extended beyond age 23 (and in no event beyond age 25).  The 2016 law does not necessarily limit the obligation to only four years.  Because of the importance and the complexity of potential agreements in this regard, this is an area that should be discussed with your lawyer.

If the children are still young, is there a need to make specific provisions for the children's post-high school education now?

No.  You may provide in your agreement clauses that provide that the determination will be made at a later date.  How this is drafted is critical.  The question can arise whether an obligation is retroactive.  A retroactive obligation is one that goes back to a date before a petition for contribution toward the child's post-high school educational expenses is filed.  If the underlying agreement or order is drafted in one way, the parental obligation may retroactive, but if drafted another way it would not be.

What occurs when the issue is generally “reserved” will again depend upon the language of the marital settlement agreement (or judgment).  Regarding retroactivity, the question is whether one is seeking to establish an obligation or whether one is seeking only to enforce a pre-existing obligation.

What beyond tuition is part of this potential obligation?

Tuition and fees (generally limited to the actual costs of in-state tuition and fees at the University of Illinois);

The actual costs for housing expenses whether on campus or off campus provided that these expenses do not exceed the cost for that academic year of a double-occupancy student room, with a standard meal plan, in a residence hall operated by the University of Illinois at Urbana-Champaign;

The actual costs of the child's medical expenses including medical insurance and dental expenses;

Reasonable living expenses during the academic year and periods of recess:

If the child is a resident student;

The child is living with one parent and attending college as a non-resident student.  In that case the living expenses include an amount that pays the reasonable cost of the child's food, utilities and transportation.

The cost of books and other supplies necessary to attend college.

Can a child continue in college regardless of how poor the grades are?

No.  The January 1, 2016 Illinois law provides that, “The authority [to require a contribution to these expenses] terminates when the child … fails to maintain a cumulative ‘C' grade point average, except in the event of illness or other good cause shown.”  But there will be an interplay between the new law and any Marital Settlement Agreement that may provide a different standard in terms of grade point average, etc.  Consulting with a lawyer is critical in decisions of this sort.

I prefer that my children attend a public/state school, such as the University of Illinois. Will the court sustain my preference?

Probably so.  Illinois courts have a bias in favor of sending children to public/state schools.  Illinois law provides:

Except for good cause shown, the actual cost of the child's post-secondary expenses, including tuition and fees, provided that the cost for tuition and fees does not exceed the amount of [in-state] tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year. [Bracketed portion is change anticipated to be effective January 1, 2017 based on HB 3898.]

My child and I have been alienated for years. We have not talked to each other but I have faithfully paid child support. Do I have to pay for this child's college education?

Yes. In a case where the father complained that the relationship with his child was “less than satisfactory,” and another case where the father stated the daughters had “isolated themselves from their father,” the courts did not excuse the father from paying for the children's education expenses.

What about a trade school? You have only addressed colleges.

The court should not make a distinction between a college and a trade school, but where a marital settlement agreement placed a financial obligation on the father if the child “attends college on a full time basis” it placed no obligation on the father for the child attending trade school.  The language of the statute provides that it includes periods of “college education or vocational or professional or other training after graduation from high school.”

What is the ratio of responsibility between the parents for post-high school educational expenses?

The law requiring parents to contribute to the post-high school education of the children states the payment should be “as equity may require,” that is, a fair division. In fact, most divorces are based on the written agreement of the parties (marital settlement agreement) and the college education issue is not decided by the judge. The marital settlement agreement usually, but not always, states how the educational costs will be shared. In many circumstances, the key considerations are the ratio of the  parents' incomes and their financial resources as well as the children's resources.

How can I limit, or place a cap on, what will be spent for my child's post-high school education?

While the 2016 law provides as a benchmark school the University of Illinois in Champaign, an agreement could provide for a different benchmark school.  In most cases the most important factor of what it will cost a parent for a child's post-high school education is not the ratio of payment between the parents, but the school which the child attends.  If contested, it is only for “good cause shown” that a parent would be obligated for a more expensive school.

I have custody of my child. Next year she will be going to college. She has chosen a community college and will be living at home. Will the child support continue?

The answer is a qualified no.  Child support terminates when the child turns 18, or finishes high school.  In no event (except the agreement of the parties as part of a court order) does child support go beyond age 19, even if a child is still attending high school.

The obligation for a child's post-high school education is a joint one between the parents. A frequent way this obligation is met under your circumstances is for the father to pay all the child's college expenses such as tuition, books, supplies, etc.  The mother often contributes in kind by providing room and board for the child. If, however, the cost of room and board for the child reasonably far exceeds the educational costs, the father should, in my opinion, make a contribution to the child's room and board.  The statute allows this because it defines educational expenses as including:

the reasonable living expenses of the child during the academic year and periods of recess:  *** (B) if the child is living with one party at that party's home and attending a post-secondary educational program as a non-resident student, in which case the living expenses include an amount that pays for the reasonable cost of the child's food, utilities, and transportation.

And the costs can be ordered to be paid over to the parent who incurs them for the “non-resident student” living at home and commuting to school.

How do financial aid and financial aid forms enter into this equation?

The 2016 law provides that, “the court may require both parties and the child to complete the Free Application for Federal Student Aid (FAFSA) and other financial aid forms and to submit any form of that type prior to the designated submission deadline for the form.”

Further, the agreement between the parents can place the obligation on the child to apply for loans, grants and scholarships for which he qualifies.

If I am required to contribute toward college or trade school expenses, what about report cards and the like?  Do I have the right to receive them?

Yes.   The law requires that “if  educational expenses are ordered payable, each party and the child shall sign any consent necessary for the educational institution to provide a supporting party with access to the child's academic transcripts, records, and grade reports.”

What about costs for getting into college — such as entrance fees?

Illinois law provides:

The court may require either or both parties to provide funds for the child so as to pay for the cost of up to 5 college applications, the cost of 2 standardized college entrance examinations, and the cost of one standardized college entrance examination preparatory course.

If the mother and father's finances are tight, can the child be required to contribute to his educational expenses?

Yes. The agreement between the parents can place the obligation on the child to apply for loans, grants and scholarships for which he qualifies.

If my child marries while in college, am I still obligated for her educational expenses?

No.  A child, upon marriage, is considered emancipated.  But, curiously, a child's enlistment into the military, incarceration or pregnancy do not terminate automatically an obligation.

What about college savings plans such as a 529 plan?

A college savings plan established before the divorce that is to be used for college (such as a 529 plan) is considered by the court to be a resource of the child.  But any post-judgment contribution made by a party to such an account is to be considered a contribution from that party.

Can the parents' savings toward retirement be considered as a resource available to them to potentially contribute toward post-high school educational expenses?

The law up to 2015 had merely provided in its first factor that the court was merely to consider the “financial resources of both parents.”  That was expanded in 2016 to include, “The present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement.”  For further information, see The Law Firm of Michael Olewinski's Q&A regarding gifts to children and 529 Plans.  The other factors are:

The standard of living the child would have enjoyed had the marriage not been dissolved.

The financial resources of the child.

The child's academic performance.

How far back can these obligations go — can I be required to pay for expenses that were incurred years before the filing of a petition seeking a contribution toward post-high school educational expenses?

It depends.  As discussed above, Illinois law provides:

The establishment of an obligation to pay under this Section is retroactive only to the date of filing a petition.  The right to enforce or prior obligation to pay may be enforced either before or after the obligation is incurred.

So the answer depends on whether or not the marital settlement agreement merely reserved the obligation or whether it sufficiently outlined the obligation such that one is merely seeking to enforce an existing obligation.

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