These practice area statements are provided by the attorneys from Murphy & Dunn and represent their thoughts on practicing law over the past 36 years in family law. They are not legal advice. They are a general overview of the law, with specific statutes cited for your review, and opinions on how they generally apply in divorce cases in Illinois. Each and every case is different.
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Section 513 of the Illinois Marriage and Dissolution of Marriage Act provides the law for college and other educational expenses for children. It is a very specific statute and the terms of the law must be followed exactly for it to apply. On its face, it appears to be very self-explanatory. However, in practice it is one of the most highly contested areas of law in Illinois. In fact, recently the entire statute was challenged as being unconstitutional and improper. More to follow as it progresses through the appellate courts over the next few years. For now, it is still the law.
COLLEGE EXPENSES. SECTION 513
Section 513(a) provides as follows:
The 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 educational expenses of any child of the parties. Unless otherwise agreed to by the parties, all educational expenses which are the subject of a petition brought pursuant to this Section shall be incurred no later than the student’s 23rd birthday, except for good cause shown, but in no event later than the child’s 25th birthday.
As a result, expenses can be paid out of the property and income of both or the estate of deceased parent. Further, all expenses must be incurred prior to the child turning age 23, unless there is good cause shown.
HIGH SCHOOL PREP TESTS AND APPLICATIONS FOR COLLEGE
In addition, under Section 513(b), the Court can require parents to file FAFSA statements, and order them to pay, while still in high school, for up to 5 college applications, for 2 standardized tests like the SAT or ACT, and pay for one college entrance exam prep class.
SUPPORT WHILE STILL IN HIGH SCHOOL
Under Section 513(c), the authority to make provision for educational expenses extends not only to periods of college education or vocational or professional or other training after graduation from high school, but also to any period during which the child of the parties is still attending high school, even though he or she attained the age of 19.
Therefore, this Section applies to high school support even when they do not graduate by their 18th birthday, high school college courses taken as dual credit, and potential “child support” type support after age 19 since formula child support stops at age 19 under Section 505. It also applies to non-traditional training like vocational training, professional training, and other training (not just college). This is great news for children that want to go into the trades, become a pilot or have a specialized trade skill.
TYPES OF EXPENSES THAN CAN BE PAID.
Under Section 513(d), educational expenses may include, but shall not be limited to, the following:
(1) except for good cause shown, the actual cost of the child’s post-secondary expenses, including tuition and fees, provided that the cost for tuition and fees does not exceed the amount of in-state tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year;
(2) except for good cause shown, the actual costs of the child’s housing expenses, whether on-campus or off-campus, provided that the housing expenses do not exceed the cost for the same academic year of a double-occupancy student room, with a standard meal plan, in a residence hall operated by the University of Illinois at Urbana-Champaign;
(3) the actual costs of the child’s medical expenses, including medical insurance, and dental expenses;
(4) the reasonable living expenses of the child during the academic year and periods of recess:
(A) if the child is a resident student attending a post-secondary educational program; or
(B) if the child is living with one party at that party’s home and attending a post-secondary educational program as a non-resident student, in which case the living expenses include an amount that pays for the reasonable cost of the child’s food, utilities, and transportation; and
(5) the cost of books and other supplies necessary to attend college.
In addition, under Section 513(e), said sums may be ordered payable to the child, to either party, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.
This Section limits the types of expenses and limits it to the actual cost of the University of Illinois at Champaign.
CONSENT FORMS AND RIGHT TO INFORMATION.
Under Section 513(f), if educational expenses are ordered payable, each party and the child shall sign any consent necessary for the educational institution to provide a supporting party with access to the child’s academic transcripts, records, and grade reports. The consent shall not apply to any non-academic records. Failure to execute the required consent may be a basis for a modification or termination of any order entered under this Section. Unless the court specifically finds that the child’s safety would be jeopardized, each party is entitled to know the name of the educational institution the child attends.
This means that each parent has the right to specific information, including where the child is attending school, their grades, transcripts and academic records. It does not extend to non-academic records like health records. This Section is important because often parents do not get along and the children have taken one parent’s side against the other parent. It protects that other parent and gives them valuable information they would not otherwise have.
TERMINATION OF COLLEGE EXPENSES.
Under Section 513(g), the authority under this Section to make provision for educational expenses terminates when the child either: fails to maintain a cumulative “C” grade point average, except in the event of illness or other good cause shown; attains the age of 23; receives a baccalaureate degree; or marries. A child’s enlisting in the armed forces, being incarcerated, or becoming pregnant does not terminate the court’s authority to make provisions for the educational expenses for the child under this Section.
This Section is interesting because it provides specific termination factors and they would not necessarily be what you think they might be.
SECTION 529 AND COLLEGE FUNDS.
Section 513(h) provides that an account established prior to the dissolution that is to be used for the child’s post-secondary education, that is an account in a state tuition program under Section 529 of the Internal Revenue Code, or that is some other college savings plan, is to be considered by the court to be a resource of the child, provided that any post-judgment contribution made by a party to such an account is to be considered a contribution from that party.
This Section is interesting because it clarifies that College 529 and other college funds established prior to the dissolution are considered part of the child’s money and resources and contributions made after the dissolution are part of the contributing party’s contributions.
A CHILD CANNOT FILE CONTRIBUTION CLAIM AND IS NOT THIRD PARTY BENEFICIARY
A child is not a third party beneficiary and cannot file for contribution unless their parent has died or is legally disabled.
Under Section 513 (i), the child is not a third party beneficiary to the settlement agreement or judgment between the parties after trial and is not entitled to file a petition for contribution. If the parties’ settlement agreement describes the manner in which a child’s educational expenses will be paid, or if the court makes an award pursuant to this Section, then the parties are responsible pursuant to that agreement or award for the child’s educational expenses, but in no event shall the court consider the child a third party beneficiary of that provision. In the event of the death or legal disability of a party who would have the right to file a petition for contribution, the child of the party may file a petition for contribution.
FACTORS FOR THE COURT TO CONSIDER IN MAKING THE AWARD
Under Section 513 (j), in making awards under this Section, or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:
(1) The present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement.
(2) The standard of living the child would have enjoyed had the marriage not been dissolved.
(3) The financial resources of the child.
(4) The child’s academic performance.
RETROACTIVITY OF AMOUNTS DUE
Under Section 513(k), the establishment of an obligation to pay under this Section is retroactive only to the date of filing a petition. The right to enforce a prior obligation to pay may be enforced either before or after the obligation is incurred.
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