The Illinois Marriage and Dissolution of Marriage Act ("IMDMA") addresses support for non minor children and educational expenses in 750 ILCS 5/513, which allows a court to allocate the cost of post high-school/college educational expenses between the parties. The court must consider four factors:
While the court does not automatically assign a parent or parents the expense of providing a college education for their non-minor child, if a parent could have been expected to provide an education for their child absent the divorce, it is likely the court will require that party to contribute to the child's college education. The court will look to the parties, their income, their assets, and the cost of the educational institute at issue in determining the proper financial allocation between the parties.
An important wrinkle relating to college education expenses is the income of a parties' new spouse. College educational expenses are considered a form of child support and the court cannot require a new spouse to contribute to the support of a child that is not their own. However, the courts and case law have made "end run" around this legal requirement. The court assumes that a party will pool income and resources with a new spouse to meet living expenses, and therefore will look to new spouse's income to determine how much of the litigating party's income is "freed up" or available to pay college expenses. This works to the detriment of parties with new spouses with high income, which is considered available to pay for all of that party's living expenses and therefore that any other income is freely available to contribute to the college expenses.
The IMDMA requires the court to consider the financial resources of the child in allocating college expenses. This includes income and assets from all sources. If the child particular high earning job or income (e.g. child actors), a trust fund, or any 529 accounts, scholarships or grants, the court will seek to use those funds first. Moreover, the child's academic performance must indicate an aptitude towards college. If the child shows no clear academic promise or interest in seeking higher learning, the court will not burden the parents with the costs of a failed education.
The court will also consider any agreements between the parties in making its allocation, including marital settlement agreements. Generally, when parties divorce with young children, the parties are unaware of what their financial will be when the children reach college age. Therefore, oftentimes they leave the determination of college expenses to the courts and IMDMA Section 513. While this is common and reasonable, it is also a "ticking time bomb" that will eventually lead to either further litigation or negotiation once those children are nearing the end of high school and their educational needs becomes apparent. The parties are also able to place reasonable limitations on their contribution, including whether a child is expected to go to in-state public school as opposed to an out-of-state private institution. The parties can also agree to a particular allocation as between themselves, or even a specific dollar amount for contribution. However, if the parties agree to a specific dollar amount, Section 513 will not necessarily apply and that party might be held to contribute that specific amount regardless of their financial condition at the time the child enters college.
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