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November 14, 2010

College – Who pays?

Filed under: Family Law — Chuck @ 1:00 am
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It’s that time of year again. Divorced parents are getting together – in court – over who is paying for college for their 12th grade children.

In the absence of a divorce the state has no authority to force a parent to pay, or help pay, for a child’s college career. Most parents want their children to go further than they, and will willingly put themselves in hock to help a child get a college degree. But divorce changes that equation. A non-custodial parent my become estranged from their child, and feel no urge to help. A single parent may simply need help. Or the parents may have become so bitter about each other that it gets in the way of rational decisions about the child. Whatever the case, the Illinois legislature has provided a way to sort the issue out – IMDMA Sec. 513. (Illinois is in the distinct minority of states – most states do not have a similar statute.)

Section 513 of the Illinois Marriage and Dissolution of Marriage Act, provides for the support of adult children who have become emancipated (become considered an adult before the law) due to age – but who are actually still dependent on their parent(s). College support comes from this.

Assuming the parties cannot agree – always the best choice – and at any time, but usually after the child has narrowed his or her college choices, the FAFSA (using the income figures, etc of the “custodial” parent) has been completed and the actual out-of-pocket cost of going to college is becoming clear, the either parent (but usually the “custodial” parent) may bring an action to require the other parent to contribute to the college cost.

The court will generally require each of the “parties” – the mother, the father and the child – to contribute to the cost of the child’s education. Some courts start with each paying a third, others are not so formulaic. Generally each parent will contribute roughly in accordance with their available resources. And while the child is usually expected to contribute toward her education, the she is not generally required to run up a debt.

You might notice that I indicated that the parties contribute in accord with their resources and not their income. The court is supposed to look past income and into the total resources available to the party. For example, if one party has a small income, but access to huge investments, that person may be required to contribute all out of proportion to his income.

If a child has access to scholarships, that may be the child’s contribution. This is especially true if continuing access requires a certain grade level. The statute now also makes the child’s academic performance a factor in allocating (or not) the cost of college.

Government grants fill the same function as scholarships, but generally only require the child to maintain adequate progress toward a degree. So the argument that they should be considered the child’s contribution is problematic. They are often simply taken off the cost of education and the remainder is split.

Sometimes one or more of the parents and/or the child do not agree on where the child should attend. The courts are loath to interfere in this decision, but will most often when the question is one of public vs. private school. If after the application of grants and scholarships, the cost of private school far exceeds the cost of public education the court will sometimes limit the contribution of the non-custodial parent to a contribution based on the public school cost. This may make the decision for the parents.

You may have noticed that there are few, if any, absolute statements in the discourse above. That’s because there are few, if any, hard and absolute rules. If a parent want absolutes, an agreement must be reached. With the help of competent counsel the parties who have the best interests of their child at heart should be able to reach agreement.

Chuck from Watson Law, LLC

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