SUPPORT FOR A NON-MINOR CHILD WITH A DISABILITY
When it comes to child support, the traditional law in Illinois is that a parent payor’s obligation to make child support payments expires when the minor reaches the age of 18 or has graduated from high school, whichever is last to occur as long as all child support is current. Child support arrearages must still be satisfied after the child is emancipated and carries 9% simple interest. 750 ILCS 5/505. This language is not absolute, however. One exception is that a parent can be ordered to contribute to a non-minor child’s college education expenses. 750 ILCS 5/513. Moreover, the Illinois legislature has authorized courts to order child support payments be made for the support of non-minor children with disabilities. 750 ILCS 5/513.5. Specifically, the statute states that a court “may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated.” 5/513.5(a). The payments can be ordered to be made from one parent directly to the other, to be put in a trust created by the parents for the benefit of the non-minor child with a disability, or to a special needs trust for the sole benefit of the non-minor child with a disability.
What qualifies a non-minor as disabled?
For the purposes of 5/513.5(c), a disabled individual is one who “has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment.”
How is the amount of support determined?
Unlike child support payments involving a minor child, there are no mathematical guidelines used to help determine the amount owed in support cases for non-minor children with disabilities. In awarding support under 5/513.5 the court shall consider all relevant factors that appear reasonable and necessary, including:
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 court may consider factors that are just and equitable;
the financial resources of the child; and
any financial or other resource provided to or for the child including, but not limited to, any Supplemental Security Income, any home-based support provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults, and any other State, federal, or local benefit available to the non-minor disabled child.
5/513.5(b)
Since 5/513.5 became law on January 1, 2016, the premier case interpreting its application is In re Guardianship of Sanders, 2017 IL App (4th) 160502. In Sanders, an Illinois trial court ordered the father of a disabled non-minor daughter to contribute $350 per month in support for her care, nearly double the $147 per month in child support payments the father had been paying to support the child as a minor. Notable about the case is that because it was part of a guardianship proceeding, the trial court found 5/513.5 inapplicable and instead ordered the contribution pursuant to its “inherent powers” under the Probate Act, finding it was in the disabled non-minor’s best interests to do so.
The appellate court agreed with the trial court that it had jurisdiction to order the father to make contributions towards the care and support of his disabled non-minor child, but found its authority to do so vested in 5/513.5, despite the case stemming from a guardianship proceeding. It therefore remanded the case back to the trial court to determine the amount of support to be contributed using the four factors provided by the statute. Soon thereafter, in an unpublished opinion, the Appellate Court, Second District followed the lead of Sanders and upheld an order for continued support of a disabled non-minor that was more than would have been granted in a child support case involving a minor. In re Marriage of Wolf, 2017 IL App (2d) 161109-U.