divorced dad thinking about his kids college future
STG Divorce Law

STG Divorce Law

A Parent’s Guide To Who Pays for College In Divorce In Illinois

When going through a divorce, parents in Illinois are often shocked to learn that Illinois law requires that they contribute to their children’s college education. Married parents have no such obligation, of course. Section 513 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/513) governs the payment of post-secondary education expenses (college, trade school, etc.) for children of divorcing parents in Illinois. This article answers common questions about college and other living expenses for children over the age of 18 that divorced parents have.

Who is covered by the law?

The statute covers children of divorced parents in Illinois over age 18. Also, adult children who normally would not qualify for child support or support for medical expenses may qualify for support (beyond contribution toward college expenses) if they have special needs and cannot care for themselves. 

What does the law provide?

The law provides for payment of college expenses (not graduate school) as well as payment of living expenses while the child is attending school. 

When does 750 ILCS 5/513 apply? 

Illinois law states that both parents and the child are responsible for the child’s post-secondary educational expenses. Unless otherwise agreed by all parties, neither parent is liable to pay for any educational expenses beyond the student’s 23rd birthday. The court can modify this rule, pushing the liability deadline for college expenses back to age 25.

When do I need to file a request for a contribution to college expenses?

Filing a request for a contribution to college expenses must be done before the expenses are incurred unless your divorce judgment permits filing after expenses are incurred. A claim for contribution to these expenses predating a filing is typically waived (In re Marriage of Peterson, Ill.App. 4 Dist., August 10, 2020). 

The obligation to pay takes effect only after a petition for contribution is filed. Any amounts awarded can be used for future expenses, but the court will not grant retroactive support before the petition for contribution is filed. Your Illinois divorce marital settlement agreement should contain a provision stating that the parties agree they will contribute to college or post-secondary education expenses. This way, the request timing issue is resolved in advance and the parents are required to cover the expenses from the start, with only the amount of contribution left to be resolved.  

How long will I be required to pay for post-secondary expenses?

Unless the parents have a prior agreement in writing, such as in a marital settlement agreement or agreed court order, under this section, educational expenses “shall be incurred no later than the student’s 23rd birthday, except for a good cause shown, but in no event later than the child’s 25th birthday.” (Yakich v. Aulds, 2019 IL 123667, 155 N.E.3d 1093). 

This rule does not apply when the child develops an illness or other good cause shown, turning twenty-three, receiving a bachelor’s degree, or getting married. If the child enlists in the armed forces, gets incarcerated, or becomes pregnant, this does not terminate the court’s authority to make provisions for the educational expenses for the child under this act.

Does the law require the parents to do anything beyond contributing money? 

Illinois law also requires that the child and parents complete FAFSA forms, and apply for other student aid and scholarships. 

How does the court determine how much each parent should pay?

Depending on the circumstances, the court, interpreting the law, will consider the parents’ combined income, their assets, and any assets held by the child and determine how much each parent should contribute. The court also may consider the assets and income of new spouses. When determining the fair amount each parent should contribute, the trial court considers the financial resources of both parents, as well as all the money or property to which a parent has access, including that available to her through her new spouse. In re Marriage of Drysch, 314 Ill. App. 3d 640 (2d Dist. 2000). The court does not make the new spouse pay for education expenses but can consider the effect the new spouse’s assets and income have in reducing the expenses of the parent obligated to pay for post-secondary education expenses. This is intended to address the situation where a parent reduces their income after marrying a wealthier new spouse, when in fact the new spouse is paying for their living expenses – then claims they cannot afford to pay for college. 

What educational expenses need to be covered? 

The obligatory educational expenses start with the child’s application process. The court may require both parents to fund up to five college applications, two standardized college entrance examinations, and one exam preparation course. 

Upon acceptance, the educational expenses include but are not limited to, except for good cause, tuition, and fees, housing expenses (on or off campus), medical expenses including medical incurrence, and dental expenses. All post-secondary expenses cannot exceed in-state student tuition and fees at the University of Illinois at Urbana Champaign. Also, room and board expenses may not exceed the amount of a double-occupancy student room with a standard meal plan in a University of Illinois residence hall. 

What expenses must be paid by parents if a student lives home during the academic year or if they return home during the break?

If the child is a resident student, reasonable living expenses are required during the academic year and breaks. If the student lives with one of the parents while attending a post-secondary education program as a nonresident, food, utilities, transportation, books, and other necessary supplies must be covered, and both parents contribute – including a reasonable amount for the room and board at the parent’s home. 

Are there minimum grade standards? 

Yes. The educational expenses terminate when the student fails to maintain a cumulative “C” GPA. Also, the student is required to provide grade reports to the parents. 

What are the possible outcomes of my case? 

The overall outcome of a college contribution matter depends on the specific facts of your case. 

If the issue is being addressed as part of a pre-decree divorce case, and the children are young, whether the parties work out an agreement or the court decides the case at trial, the final judgment will typically provide that the parties each have an obligation to pay for college as does the student, but the proportions of the contributions will not be set. Instead, they will be “reserved” or left open for future determination. This is because the circumstances will likely change between the date the judgment is entered and the time a child starts college, so to determine the amounts of contribution at that early date would only be guesswork and unfair to the parties. 

The second potential outcome is that since the child is close to commencing college, or already in school, the parties agree or the court determines not only that the parents and child have an obligation to pay for college, but also the judgment will set the amounts or percentages each person is required to contribute. 

It is unlikely that the court will relieve any of the three people involved from all responsibility to pay. In our experience, courts generally use a ⅓, ⅔ rule of thumb for college contributions. That is, the child is generally expected to contribute ⅓ of the total costs, whether by money already set aside by the parents in a CollegeIllinois plan or 529 plan, child’s education trust, or similar fund, by scholarships, grants, or student loans. The parents are required to contribute the remaining ⅔, with only the percentages of each parent’s contribution to be determined. 

After a divorce case, there are often one of three outcomes. The first possibility is that the parties reach a settlement, and agree on terms addressing payment of post-secondary expenses. The second possible outcome is a trial – where the parties present evidence, the lawyers make legal arguments, and a judge decides the outcome. The final potential outcome is a “reservation” of the issue of post-secondary education contributions. 

Common Questions & Answers

What if my child wants to go to graduate school? Do these rules apply? 

No, post-college expenses are not a part of  (750 ILCS 5/513) thus, any graduate school, law, or medical school does not apply. 

If my child gets accepted into an ivy league school such as the University of Chicago or Harvard, will I be forced to pay? I can’t afford it. 

You’ll be required to contribute, but your contribution will be limited. As published on the University of Illinois Website, the court will cap your financial responsibility at the amount it costs to send your child to the University of Illinois at Urbana Champaign for tuition, fees, and room and board. You and your former spouse are free to pay more, of course, but the court can only order payment up to that limit. 

Does the law apply to trade school expenses?

Yes. It is not limited to college costs. 

Am I entitled to monitor my students’ grades? 

Usually, post-secondary education students are adults, and parents have no legal right to academic transcripts. However, under Illinois law, unless the court finds that the child’s safety will be jeopardized, each party is entitled to know what school the student attends and has access to transcripts and records. 

What if my child has preexisting college savings, like College Illinois or a 429 plan? 

If the student has any preexisting college funds, the court will automatically consider these first before deciding what each party should contribute. The funds for the child are used first; then, the parents will be expected to contribute the remaining expenses (limited by the cap discussed previously). 

What if my spouse becomes wealthy after our divorce does that party pay for college expenses? Do I still need to pay?

Yes. The language in that state states that both parties contribute according to their relative assets and income. This still applies even in extreme cases. For example, a very wealthy Fortune 500 executive could have easily afforded all of the college expenses for all three children. Even so, the court required the other parent to contribute a very small amount proportionate to that person’s income compared to the executive. The court explained that both parties were required to contribute something under the law.

Do I have to cover my child’s expenses during summer, winter, and spring break? 

Yes. 750 ILCS 5/513 (a)(2)

My child lives with the other parent during winter break and summer vacation. Do I have to give them any money?

Yes. The residential parent is covering room and board for the child, and if they weren’t you would both be contributing to an apartment and living expenses or something similar. Most people work out a fixed amount to help defray living expenses (for example – $500/month). 

What if I have a child with special needs?

513 also provides for expenses for special needs adult children. There are no set formulas but the concepts are the same (comparing available assets and income).

Start By Planning Ahead

If you are considering a divorce, or have already started the process, you can make things a lot easier by understanding the requirements, as stated by the law, how the courts handle the divorce process and what to expect based on your unique situation.

Divorce in Illinois can be complicated, but it isn’t something you have to face alone. If you would like to speak with someone about your case and get answers to specific questions about who pays for college after a divorce, contact our office today and speak with an experienced divorce attorney.

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