Illinois divorce courts can order a parent to pay for a child’s college education. Illinois in the minority of states where payment for college expenses can be ordered without an agreement between the parents. Illinois divorce and paternity law calls this “post-high school educational expenses” because it’s not limited to college. College expenses—and court orders to pay expenses—are generally considered like child support in Illinois.
Is it likely that the obligation for post-high school education or training will last more than four years?
Generally, no. Illinois law provides the court-imposed obligation to pay for post-high school educational expenses generally 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). Current law does not necessarily limit the obligation to four years. Because of the importance and the complexity of potential agreements involving payment of college expenses, it’s critical to discuss this issue with your lawyer.
If the children are young, do I need to make specific provisions for the children’s post-high school education now?
No. You may provide in your agreement that the determination will be made at a later date. But how this is drafted makes a difference. The question can arise whether an obligation is retroactive. A retroactive obligation goes back to a date before the filing of a petition for contribution toward payment of college expenses. If the underlying agreement or order is drafted in one way, the parental obligation may retroactive. But if it’s drafted another way. it would not be.
What occurs when the issue is “reserved” depends on the language of the marital settlement agreement (or judgment). Regarding retroactivity, the courts look to whether one seeks 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. These are generally limited to the actual costs of in-state tuition and fees at the University of Illinois;
- Housing and Meals. The costs for court ordered housing expenses normally don’t exceed the cost for that a double-occupancy student room. Costs for meals are presumptively limited to a standard meal plan in a residence hall operated by the University of Illinois;
- Medical Insurance and Medical Expenses. The actual costs of the child’s medical expenses including medical insurance and dental expenses;
- Reasonable living expenses. Illinois law defines these are expenses during the academic year and periods of recess. It includes expenses for a:
- Resident student.
- Non-resident student living with parent. This means the child lives with one parent and attends college as a non-resident student. The living expenses then can include an amount that pays the reasonable cost of the child’s food, utilities, and transportation.
- Books and Supplies. 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. Current law provides that the authority to require a parental contribution ends 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 support my preference?
Probably so. Illinois courts have a bias in favor of sending children to public/state schools. Illinois law provides that except for good cause shown, the costs should 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.”
My child and I have been alienated for years. We have not talked to each other, but I’ve faithfully paid child support. Do I have to pay for this child’s college education?
Yes. Illinois is one of the few states where the relationship between the parent and child normally does not matter.
What about a trade school? You have only addressed colleges.
The court shouldn’t 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,” the court didn’t require the father to pay for trade school. Illinois law provides that the obligation 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 states the payment should be “as equity may require.” This means the division must be fair. 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 settlement agreement usually, but not always, states how the educational costs will be shared. The key considerations are often the ratio of the parents’ incomes, the parental financial resources, and 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 current Illinois 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 key factor in determining overall cost is not the ratio of payment between the parents but the school which the child attends. If contested, it’s only for “good cause shown” that a parent would be obligated for a more expensive private school.
Next year my daughter will be going to college. She has chosen a community college and will be living at home. Will the child support continue?
This is complicated. 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 still attends 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 for the child’s room and board. If, however, the cost of room and board exceeds the educational costs, the father should, 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 does financial aid enter into this equation?
Illinois divorce 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?
Entrance fees are potentially part of it. 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 parents’ agreement can require 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 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 considers the “financial resources of both parents.” That was expanded 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 Gitlin Law Firm’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 the language of your settlement agreement.
