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Can The Court Order My Former Spouse Or Me To Pay For My Child’s College?

Illinois law provides that the court may order parties in a divorce or post-dissolution proceeding to contribute to their child’s college educational expenses. Effective January 1, 2016, the section governing educational expenses for a child who wishes to attend college has been revised to ensure more consistency and fairness. Specifically, the court can now consider parents’ need to also plan and prepare for their own retirement, for example, while also meeting any statutory post-high school educational obligations on behalf of their children.

Post-high school educational expenses must be incurred no later than the student’s 23rd birthday unless otherwise agreed to by the parties or for good cause shown. 750 ILCS 5/513(a). An example of good cause may be when the child was in the military, which extended his or her age to commence college. However, an award cannot be made after the student’s 25th birthday under any circumstances. 750 ILCS 5/513(a).

Further, the maximum amount of expenses for tuition, fees, housing, and meals is now capped at what is charged at the University of Illinois at Champaign-Urbana, unless good cause is shown. 750 ILCS 5/513(d). This cap does not include other expenses such as medical expenses and other reasonable living expenses. 750 ILCS 5/513(d). If your child plans to attend a private or out-of-state college, you should be prepared that the court will not order expenses beyond this cap be paid, unless good cause is shown.

The court’s authority to order support under the applicable Section terminates when the student fails to maintain a “C” average (unless in the instance of illness or otherwise extenuating circumstances), becomes twenty-three (23) years of age or older, receives a bachelor’s degree, or marries. 750 ILCS 5/513(g). The court’s authority is not terminated under this Section if the child joins the military, becomes pregnant, or is incarcerated. 750 ILCS 5/513(g).

So, what do Illinois court’s consider when making this determination? The courts must consider the following:

The present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement.
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.
750 ILCS 5/513(j).

Accounts established for the benefit of the child’s college educational expenses that existed at the time of the divorce (considered the resources of the child) are treated differently than post-dissolution contributions to the accounts (considered the resources of the contributing parent) – so be mindful of these distinctions and consult with your attorney upon divorce to best plan and prepare for payment of college and possible future litigation of this issue. 750 ILCS 5/513(h). Relief under Section 513 is retroactive to the date of filing of the petition, which resolves split appellate court decisions on this issue – so make sure any Petition is filed before such costs are incurred and paid. 750 ILCS 5/513(j).

Erin B. Bodendorfer is an associate with Katz & Stefani.

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