By: Todd R. Warren
The scope, extent and amount of a parent’s obligation to contribute to a child’s post-high school college education has long been a source of uncertainty and anxiety for families throughout the country.
Over the course of the last 25 years, this anxiety has heightened exponentially for students and parents alike due in large part to:
a. The soaring costs of college tuition;
b. The soaring costs of ACT and SAT tutoring, college preparation courses and the application process;
c. The intense academic competition to gain acceptance to a student’s preferred or chosen college; and
d. The reality that the college degree that was so valuable when the costs were far less, has been rapidly declining in value as the costs and competition spiral further out of control.
Add to these hurdles a contested divorce proceeding, legal fees, a depressed real estate market, and a division of family income and one can readily see how the prospect of paying for college has become nearly impossible without resorting to long term financing and student loans, the amounts of which may never be repaid.
In an effort to simplify and perhaps streamline these issues within a divorce proceeding, the legislature has changed the rules and has amended the statute (750 ILCS 5/513) effective January 1, 2016 and has now divided the content into two separate statutes. The first, still known as 750 ILCS 5/513 deals with the traditional college scenario. The second, 750 ILCS 5/513.5 deals with support for a non-minor child with a disability.
750 ILCS 5/513
A. 513 (a) ENDING TIMELINE
The new statute explicitly provides that expenses which are subject to payment for a college education “shall be incurred no later than the child’s 23rd birthday, except for good cause shown, but in no event later than the child’s 25th birthday.”
Simply put, this change sets the clock running on the finality of the parents’ financial obligation. The statute however, is silent as to the definition of “good cause shown” and who has the burden of presenting and/or meeting this obligation. Later in the revised statute, it provides that a child shall not be a third party beneficiary of the parties’ agreement or a court ordered decision under the statute and may only file a petition for contribution to such expenses in the event a parent is deceased or under legal disability and therefore cannot file their own petition. However, if the parents are both alive, and not disabled, and have simply run out of money or decided to stop paying anything beyond the child’s 23rd birthday, there does not appear to be an express way for the child to pursue these claims.
B. 513(b) FAFSA
The new statute specifically provides that the Court “may” require both parties and the child to complete the Free Application for Federal Student Aid and other financial aid applications. There does not appear to be any criteria in the new language as to why a Court would or would not require this and appears to be something that is open to some discretion.
513 (b) APPLICATIONS/ PREPARATORY TESTING FEES
This is a new and very important new provision that recognizes the reality of the application and preparatory testing process.
Under the new statute, the court can require parents to provide funds for:
1. Up to 5 college applications. Depending on the school, these application costs can range from $50-$100 each. Some schools accept something known as a “common application” which is paid for one time but can be submitted to any school which will accept it. Applications typically are submitted at the onset of a student’s senior year.
2. 2 college entrance exams (ACT/SAT). These tests typically cost $55-$60 each. The ACT test, which is the more common of the two exams, is offered in October, December, April and June of the student’s junior year.
3. 1 standardized college entrance examination preparatory course. There are many options and variations of courses available which range from online, classroom and private tutoring. These courses typically range in costs from $300 – $1,500(+) and offer varying degrees of private help depending on the student.
Missing from this section is any reference to college visits made by the child or by either parent with the child. Though this is something parents can include as an expense by agreement in their Marital Settlement Agreements, it would appear on the surface that this is not something the Court would order contribution for, or reimbursement to, either parent.
C. 513(C) BEGINNING TIMELINE
Under the new statute, it broadens the time period for when the statute applies to include periods of time a child is still in high school but has already turned 19. This appears to be a bridge for those children who may have started school late or may have been held back a year or so in school during their minority years. It is somewhat unclear as to what expenses are to be paid for such a student within this statute, since presumably the child is still at home, has not graduated high school yet, and is not yet within the sphere of the college application process.
D. 513(D)(1-3 AND 5) UNIVERSITY OF ILLINOIS
For years, many Trial courts have struggled with the unwritten “guideline” that the University of Illinois should represent the outer limit of a parent’s financial obligation under the statute. The new statute seemingly removes that decision from the process and ratifies that the University of Illinois, is in fact, the benchmark to be applied. Or does it? Though cited in this new provision, it also provides that this benchmark shall be applied “except for good cause shown” and in the preamble to this provision provides that the expenses “shall include but not be limited to” these stated costs. There is no definition within the statute as to what “good cause shown” is intended to mean, nor what the circumstances would be to exceed these stated limits. For example:
• If a student has a 5.0 out of 4.0 and a 36 on his or her ACT and is eligible to attend an Ivy League school, is this “good cause shown” for the Court to elevate the spending level to Harvard or an Ivy League school?
• If one or both parents have a high net worth or high incomes, and the family can afford for the student to attend USC, is this enough to establish “good cause shown”?
• If a student applies, but is not accepted at the University of Illinois, is this “good cause shown” for the parents or the child, to have a greater responsibility for paying out of state tuition and costs?
• If a parent is remarried to a wealthy new spouse and therefore has a greater ability to pay for college expenses, is that “good cause shown” to exceed the statutory level?
Attached is a summary of the varying costs for tuition at the University of Illinois for the 2015-2016 academic year. Depending on the chosen course of study, the base annual tuition varies for Illinois residents from $12,036 to $17,040 depending on the student’s chosen declared major. The school also provides a baseline estimate of additional expenses for housing, campus fees, books and supplies, and other miscellaneous expenses totaling $18,300 per year.
This does not appear to include, car expenses, medical insurance, uninsured medical and dental expenses, and other typical living expenses that many students also have.
513(D)(4) PERIODS OF RECESS
This new language includes payment of “reasonable living expenses” for a child who is either attending college but living at home with a parent, or for a child attending school away from home during the academic year and periods of recess. The statute is silent as to what “reasonable” means and does not indicate what the standard is for the Court to meet this provision. Also missing from the new language is how the Court is supposed to integrate these additional support obligations into the maintenance and child support obligations which may separately exist for younger minor children.
E. 513(E) WHO ARE PAYMENTS MADE TO
This is a short paragraph that potentially may have the biggest impact for parties who may be estranged after the divorce, or for children who may be estranged from one or both parents. It provides that the Court may order that payments be made to the child, to either party or to the educational institution through a special account or trust created for that purpose.
Coordinating the timing and amounts to be paid for ongoing expenses can be difficult in even the best of circumstances, particularly when each parent and the child may be contributing separate amounts. Almost all of the schools have online access but much of it is limited to the student alone. Hence, it is critically important that the Court Order ultimately entered have specific timing and notice provisions so the payments can proceed in a coordinated effort, not just for tuition payments which are typically twice per year, but also for housing/rent, utility payments if the student is living in an apartment, insurance, etc. etc. etc.
F. 513(F) ACCESS TO INFORMATION
This provision solidifies the obligation of the student and the parents to cooperate and execute the releases and consents necessary for information concerning grades, and academic performance to be shared.
G. 513(G) STUDENT PERFORMANCE – “C” AVERAGE
This new provision is fairly self-explanatory and requires the student to maintain a cumulative C average “except in case of illness or good cause shown” in order for the parents’ obligation to continue regarding funding.
H. 513(H) ACCOUNTS FOR COLLEGE
This new provision contains very few words but has a significant meaning in the context of determining the source(s) of payment for college education. It mandates that the Court is to consider (not may consider) the following types of accounts as a resource of the child in determining how college expenses are to be paid for:
a. An account established prior to the dissolution that is to be used for the child’s post-secondary education;
b. An account in a state tuition program under Section 529 of the Internal Revenue Code, OR
c. An account that is some other college savings plan.
While custodial accounts, UGMA accounts, UTMA accounts and 529 Plan accounts would clearly fall into this category, it is unclear whether a Trust maintained for the child, would also be accessible to the Court in allocating the expenses between the parties. For example, if a parent’s extended family has established Trusts for their grandchildren, and the parents relied upon those funds while they were married as a means to pay for college for their children, but are now getting divorced, can the Court consider that resource even though the Trustee may not be a party to the case? Would a parent need to file a Motion seeking to join the Trust to the divorce proceeding to access those funds? The statute is somewhat unclear as to the mechanics of how that would work.
I. 513(I) THIRD PARTY BENEFICIARY
This provision makes it clear that the child cannot and will not be a third party beneficiary to the parties’ settlement agreement or Judgment and thus is not entitled to file his or her own petition for contribution to these expenses. While the sentiment may be appropriate that “these are issues for your parents to take care of” the actual implication could be problematic if the parents both simply agree that they do not have the means to pay for college, or have a strained relationship with a child, and both agree to omit any reference to 750 ILCS 5/513 in their Marital Settlement Agreement, in which case, what would the remedy be for the child?
J. 513(J)(1) CRITERIA FOR COURT TO CONSIDER
1. The present and future financial resources of both parties to meet their needs, including but not limited to, savings for retirement.
Very few people are blessed with the ability to pay for their children’s college education expenses out of their incomes. Many times, Courts have tried to allocate the responsibility for payment of college based upon a simple ratio of one parent’s income against the other. While on paper this may be plausible, the reality is that the parties’ respective daily incomes are already being used to pay for their daily expenses, including expenses for other minor children who may still be living at their two homes.
Likewise, very few people are able to both leave a marriage with enough savings for both of their retirements. Parents who have a first child going to college are likely to be in their mid to late 40’s or early 50’s. For most people, a secure retirement at age 65 is becoming more of a dream than a reality, even in the best of circumstances.
Typically, one parent may have a greater ability to earn income in the future, or in some instances, may be eligible to receive gifts or an inheritance from a family member of their own. Though typically these kinds of things are often viewed as an expectancy rather than a certainty, the term “future financial resources” may logically lead to a discussion with the Court concerning such expectancies.
Subsections 2-4 remain unchanged from the prior statute.
What is curiously missing from this analysis, is any express reference to the Court’s ability to consider the assets and/or income of a new spouse. Given the amount of litigation and uncertainty which has ensued since the Court’s decision In Re the Marriage of Drysch, 314 Ill.App.3d 640, 732 N.E.2d 125, 247 Ill.Dec. 409 (2nd Dist., 2000) it is interesting to note that the new statute did not incorporate or create any new language to define or quantify how these outside resources are to be applied, if at all.
K. 513(K) RETROACTIVITY/ENFORCEMENT
This provision makes clear that the establishment of an obligation to pay under this section is retroactive only to the date of filing a petition and that the right to enforce a prior obligation to pay may be enforced either before or after the obligation is incurred. This provision attempts to address and clarify the issues raised by the prior Court decisions In Re the Marriage of Petersen, 2011 IL 110984, 955 N.E.2d 1131, 353 Ill.Dec. 320 (2001) and In Re the Marriage of Spircoff, 2011 IL App. 103189, 959 N.E.2d 1224, 355 Ill.Dec. 491 (1st Dist., 2001).
Reading between the lines this appears to mean that a passing reference to a later determination of responsibility pursuant to 750 ILCS 5/513 in a Marital Settlement Agreement only sets the table, and is not the actual obligation to be enforced. It still requires a party to file an actual petition dating back to the time the expenses were incurred (including ACT prep sources in the child’s Junior year). Thus if a parent wants to be reimbursed for expenses during a prior period, a timely petition would seemingly have to be filed a year before a student starts to submit applications.
750 ILCS 5/513.5
This is an entirely new statute which seeks to separate the authority for a court to award support for a non-minor child with a disability.
A. 513.5(A) TIMING
This section speaks to the different ways payments can be made and also speaks to the timing of when a claim needs to be made. Specifically, it provides that the application “may be made before or after the child has attained majority”. It further provides that “Unless an application for educational expenses is made for a mentally or physically disabled child under Section 513, the disability that is the basis for the application for support must have arisen while the child was eligible for support under Section 505 or 513 of the Act.
Accordingly, it would seem that if any mental or physical disability occurs after the child is no longer attending college pursuant to 513 as amended, then the parents would not have any duty to provide financial support for that child going forward. However, under the Affordable Care Act, a child can be maintained on a parent’s health insurance policy until the age of 26.
In most circumstances where the disability is diagnosed at an early age, this would not be an issue, but calls into question such formal diagnoses that may be more difficult to determine until that child is older, namely a drug or alcohol addiction, or something that perhaps the child and/or parents may simply not be aware of. For example diagnosing an anxiety disorder or something more subtle and less overt than a disability visible naked eye also comes to mind.
Obviously parental vigilance and cooperation is imperative in looking into such situations at an early age to avoid any timing disputes within these parameters.
B. 513.5(B)(1, 3 AND 4) CRITERIA FOR THE COURT TO CONSIDER
This section includes largely the same criteria the Court is allowed to consider under the amended section 513, including resources available for the child through outside agencies and Supplemental Security Income.
513.5(B)(2) “JUST AND EQUITABLE”
This subsection is identical to the provision in the amended section 513, but it also includes that the Court may also consider factors that are “just and equitable”. This language is not part of the Court’s analysis of the amended 513 relative to college payments. It is unclear why this would apply in only but not of the new statutes, particularly given the substantial costs involved with all of these scenarios.
513.5(c) WHAT IS “DISABLED”
The new provision defines this term as
a. “an individual who has a physical or mental impairment that substantially limits a major life activity”;
b. “has a record of such an impairment” OR
c. “is regarded as having such an impairment”
These predicates all contain many concepts which are subjective and may be prone to misinterpretation at best and manipulation at worst. For example, what does “substantially limits” connote? What are considered to be “major life activities”? What “record” is contemplated? Does “regarded” mean “diagnosed by a physician” or the opinion of a parent.
Again, in visibly obvious situations, none of these distinctions would be particularly problematic, but in the more subtle or less obvious situations, the intent or breadth of the Court’s involvement remains on the surface to be largely an unknown or subjective element.
513.5(c) WHAT IS A “DISABILITY”
The new provision defines this term as:
a. “a mental or physical impairment that substantially limits a major life activity”.
The statute does not require that a person be found to be legally disabled by any government agency or that a physician actually diagnose such a condition. Situations where a person may have ADD or ADHD, or an anxiety disorder, or perhaps even a learning disability come to mind as situations which may or may not be improved with medication or perhaps situational tutoring or outside assistance but still may impact that person relative to a “major activity”. Would this qualify as a “disability”?
