College Contribution and Child Support in Illinois

The name "child support" is somewhat misleading when you realize that it often continues past a child's 18th birthday. Illinois courts, under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), have the right to award child support past the age of majority (either the child's 18th birthday or the day when the child graduates high school) for many reasons, one of which is educational expenses. Specifically, it says:

The court may also make provision for the educational expenses of the children...whether of minor or majority age.... The authority under this Section to make provision for educational expenses extends not only to periods of college education or professional or other training after graduation from high school, but also to any period during which the child of the parties is still attending high school, even though he or she attained the age of 19. 750 ILCS 5/513(a)(2).

So what does this mean for you if you're a parent with children nearing college age?

When deciding the issue of child support, the Court is allowed to order the payment towards college expenses; however it is not required to do so. In re Marriage of Hillebrand, 258 Ill.App.3d 835, 840-41 (1994). There is no "absolute right" to a college education. In re Marriage of Spear, 244 Ill.App.3d 626, 630 (1993). When deciding whether to require contribution towards post-secondary education, the court must consider the following four factors: (1) the financial resources of both parents; (2) the standard of living the child would have enjoyed if the relationship had not dissolved; (3) the child's financial resources; and (4) the child's academic performance. 750 ILCS 5/513(b). However the court will also look at: the cost of the school, the programs offered at the school, the child's scholastic aptitude, how the school meets the child's goals, the benefits the child will receive from attending the school, and whether the parents need to pay for a private school when there are public schools available that are just as good. People ex rel. Sussen v. Keller, 382 Ill.App.3d 872, 878-79 (2008); Spear, 244 Ill.App.3d at 630.

The Court says that the custodial parent has the right to direct the education of a minor child. Spear, 244 Ill.App.3d at 629. However, a child going to college is considered to be an adult, and can make his or her own decision about whether or not to go to college, and where. Id. But, if the custodial parent wants the non-custodial parent to contribute to these costs, then the Court needs some convincing. The custodial parent (or whichever parent wants contribution towards college expenses) must prove to the court that the other parent should contribute to college expenses, and how much those expenses will amount. Id. Then the parent being sued for contribution, if they do not want to pay, must show evidence that "equally balances" the other side. So, once a parent who is asking for college tuition money (the Petitioner) convinces the court that they should get what they want, the burden of proof shifts. Now the other side has to prove that they (the Respondent) shouldn't pay, or that they shouldn't have to pay as much as was initially asked for.

How much a parent is ordered to pay is based on their income relative to their spouse's income. If you make $100,000 per year but your spouse only made $10,000, it's a safe bet that you'll be paying most of the expenses. The court has found that the non-custodial parent can be ordered to pay as much as 75% of the costs of schooling. Street v. Street, 325 Ill.App.3d 108, 116 (2001). Even Social Security Disability payments, which generally are exempted from garnishment, are not exempt from college education contribution. In re Marriage of Truhlar, 404 Ill.App.3d 176, 182-83 (2010). However, the court will not order a parent to pay more than they can manage. In re Marriage of Thurmond, 306 Ill.App.3d 828, 834 (1999). Courts look at the factors considered above and may determine that a public school is better choice than a private school if the private school is more expensive than a family can afford. Sussen, 382 Ill.App.3d at 880. When a child wants to attend an expensive private school, the parent seeking contribution must demonstrate that the school has special programs or attributes that make the additional costs reasonable under the circumstances, or that the more expensive school is "necessary or more appropriate" for the child. Id. at 881. Then the court will examine the parents' resources and conclude whether or not the parents can afford such an expensive school. Id. at 881-82.

This kind of analysis, though it seems like it might be overreaching, does not limit a child to going to one kind of school over another. For instance, if your child would like to go to an unaccredited bible college but doesn't plan to pursue a religious career, he or she can still go, but you may not be required to contribute to their tuition. Spears, 244 Ill.App.3d at 629-30. Or, if your child wants to go to an expensive automotive mechanic's school rather than get an associate's degree at a community college with an automotive technology major, he or she can do that as well, but you may not be required to contribute to those costs. Sussen, 382 Ill.App.3d at 880.

In the end, a college education is a valuable thing, and a child pursuing one should choose a school after discussing their options with both parents, and hopefully the child can make a choice that makes everyone happy. But until then, it's important to have an idea of the law and whether it's on your side. If your child is approaching college age, it's a good idea to consult with a family law attorney so that you can be sure that your rights and interests are represented fully.