Support for Disabled Adults and College Expenses
The obligation to pay child support typically terminates when a child reaches age 18 or graduates high school, whichever is later. However, under Illinois law, the court may order parents to continue to support a child may beyond the child’s emancipation. This law specifically applies in cases where the child turns 19 years old but is still in high school, isdisabled, or enrolled in post-high school education.
Either parent may file a petition for the support of an adult child who is physically or mentally disabled. Such support may include contribution to medical expenses, living expenses, food, daily care, and the like. In making an award for contribution to the support of an disabled adult child, the court will consider the parties financial resources to meet their needs, the standard of living the child would have enjoyed if the marriage had not dissolved, the financial resources of the child, and any other resource available to the child including Supplemental Security Income, home-based support services, and the like. In many cases, the non-supporting parent will also petition to establish guardianship over a child who qualifies for expenses under this section of the statute. However, it is important to seek the advice and counsel of an experienced family law attorney before filing such a petition. In particular, it may be the case that the disabled adult child may qualify for social security disability or other government benefits. If there is a court order in place requiring the parents to pay support for the child, it may affect the child’s eligibility to receive such benefits.
Legal disputes regarding payment of college expenses are often more common and contentious. Certainly, parents who are married are not legally required to pay for their children’s college education, even though many of them do so voluntarily. Married couples are well within their legal rights to tell their sons or daughters to get a job and pay their own way through school. Because the law treats divorced parents differently than married parents, some states have declared similar laws to be unconstitutional. However, the Illinois courts have upheld Section 513 of the Illinois Marriage and Dissolution of Marriage Act. Like it or not, it is the law that applies to all divorcing couples in Illinois.
The Illinois Marriage and Dissolution of Marriage Act defines post-secondary educational expenses broadly, and the definition includes the following:
- Tuition and fees, provided the cost for tuition and fees does not exceed the amount of tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year
- Housing expenses, either on- or off-campus, provided the housing expenses do no exceed the cost for the same academic year of a double-occupancy student room, with a standard meal plan, in a residential hall operated by the University of Illinois at Urbana-Champaign
- Actual costs of medical expenses including insurance and dental expenses
- Reasonable living expenses during the academic year and periods of recess
- Books and other necessary supplies
In many cases, the court will order both parents to make some amount of financial contribution, regardless of who filed the petition. The court can also require both parties and the child to complete the Free Application for Federal Student Aid (FAFSA) and other financial aid. The statute grants the court discretion to determine how payments should be made. Payments may be made to the child, to either parent, or directly to the educational institution. A court might also determine that a parent who provides a child with a rent-free place to live while enrolled as a full-time college student satisfies his or her financial obligation for college expenses. An account established prior to the divorce under section 529 of the Internal Revenue Code, or otherwise, is considered a resource of the child, however any post-divorce contribution to said account will be considered as a contribution from that party.
In many cases, the court will also require the child to contribute to his or her education. The child’s share of his or her college expenses can be satisfied through scholarships, student loans, or part-time employment. In making a determination the court will consider both parents present and future financial resources, including retirement, the standard of living the child would have enjoyed if the parties had not divorced, the financial resources of the child, and the child’s academic performance.
If educational expenses are ordered to be paid, the parents have a right to access the child’s academic transcripts and grade reports, but not non-academic records. If the child, who is legally an adult and has rights of privacy under other laws, fails to provide his or her parents with consent to obtain those records, the court may terminate or modify the parents’ obligation to pay for college expenses. The court’s ability to make provisions for the support of an emancipated child ceases if the child fails to maintain a cumulative “C” grade point average, except in the case of illness or other good cause shown; if the child attains the age of 23; if the child receives a baccalaureate degree; or if the child marries. However, a child enlisting in the armed forces, being incarcerated, or becoming pregnant does not terminate the court’s authority.
The law gives judges a great deal of discretion in determining whether to order financial support for an adult child, and if so, the amount and conditions attached to such support. The outcome of a particular case can vary greatly depending on the particular views of the judge hearing the case. As a result, there are no guarantees when it comes to Section 513 petitions, even in cases where both parties have the financial wherewithal to provide support for an adult child.
In determining the amount parents should pay toward college expenses, courts may consider the reasonableness of the expenses in relation to the parties’ financial means. Often, courts will limit the parents’ obligation based upon the cost of attending an in-state, public university. If a child wishes to attend a private school or an out-of-state school, the court may require the child to pay a larger share of the cost.
The timing of filing a petition for contribution to college expenses is crucial. In 2011, the Illinois Supreme Court held that even in cases where a divorce decree reserves the issue of college expenses, a spouse cannot seek contribution for expenses that predate the filing of the petition. Therefore, the proper time to seek counsel is before your child attends college. Unless otherwise agreed to by the parents, all educational expenses which are the subject of a petition must be incurred no later than the child’s 23rd birthday, except for good cause shown, but never later than the child’s 25th birthday. If contribution to the support of an adult child is an issue in your case, you should contact the experienced family law attorneys at Kollias & Giese, P.C. for a consultation regarding your rights and obligations.