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College Expenses for Children of Divorce and Separated Parents

Child support does not always end when a child reaches 18 years of age or graduates from high school. Most Illinois family courts will order one or both parents to contribute to children’s college expenses based on their ability to pay and some other factors. Lawyers and courts refer to these proceedings as “Section 513 Petitions” named for the code of the Illinois Marriage and Dissolution of Marriage Act which provides for support of children after they are emancipated.

What expenses are covered?
College expenes is a liberal term. It obviosly covers tuition, school fees, books and room and board. However, medical insurance, medical expenses, travel to and from school, personal expenses and summer needs can and are usually are included.

Ability to Pay
The current trend is that the courts are forcing parents to both pay 50% of the above expenses. If one parent has a far superior ability pay (for example, one parent earns $300,000 per year and the other $30,000), a court could order the parent with money to pay all the expenses or a greater portion. It makes the most sense for the parents to pay in proportion their income if neither has major assets. Ability to pay is not just income, if one parent has significant assets, but no income, the assets factor into their ability to pay.

New Spouse’s Income
Illinois case law has held that a new spouse’s income can be used to determine a parent’s ability to pay for college expenses. For example, the Father earns $75,000 per year and has $100,000 in assets. The Mother does not work and has no income. Mother’s new husband earns $500,000 per year and their marital estate is $1,000,000. New husband has non-marital assets also of $1,000,000. I believe the court would order Mother to pay at least 50%of the college costs or possibly more in this scenario since Mother has an ability to pay for college based on her new husband income and assets which help support Mother and likely provide her with a good lifestyle. The court could not order the new husband to pay the costs, but he likely would indirectly be paying for them. Husband’s non-marital money should not be a factor in determing the parties ability to pay since Mother does not have an entitlement to the money.

Timing
One should file a Section 513 Petition three to four months prior the child staring college or trade school or as soon as the child knows where he/she is going to school and how much it is going to cost. The issue is generally reserved in a divorce decree or parenting agreement if the children are under the age of 16.

Children’s performance and Assets
The court will sometimes order the children to be responsible for part of the college costs. Any college accounts, grants or scholarships will always be applied before the parents contribute. If the child has the ability to pay for their own school (for example if they inherited a lot of money from the grandparents) then the parents may not contribute at all or very little. Children also need to maintain at least a “C” average if court’s are going to continue to order the parents to pay. That is not necessarily a rule, just an argument that can be made.