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Are Divorced Parents Required to Pay for College in Illinois?
Wednesday, June 17, 2020

As Chicago divorce lawyers, many clients with children often ask if divorced parents are required to pay for college. The general simplified answer is “yes.” The law in Illinois is that if the parents of a college-age child are unmarried (either divorced or never married to each other) the Court can require each parent to contribute to the cost of a college education. 

How Much Will a Parent Have to Pay?

This is not child support and there is no direct formula for calculating each parents’ contribution but the law in Illinois request that the amount a parent can be ordered to contribute cannot exceed the amount that it would cost to attend the University of Illinois at Urbana Champaign.   The amount to attend the University of Illinois is published information that can be used as a baseline maximum amount when your child is going to attend a private,  expensive and/or out of state school with premium-priced tuition, room and board.  This keeps the cost somewhat in check under a reasonableness standard.   

Court’s will often require both parents and the child to contribute to college (baccalaureate degree only, Master’s degree or other advanced education is not included).  I have seen Judges order the parents and the child to each pay for college in equal shares of one-third (1/3).  This can be accomplished through loans by the parents and/or students. 

The initial inquiry is to look at any agreement that the parents may have entered previously.  Usually in the form of a marital settlement agreement or parenting agreement that details parenting time and parenting responsibilities and often addresses college expenses.  If there is an agreement in place, for example, that the parties will each pay 50% of the college expense then that is the starting point for the Court – absent any substantial change in circumstances brought to the court’s attention for modification of this agreement, the likely outcome is that Each parent pays 50%.  More often, college costs are reserved until such time as the child or children become college age.  This is wise as it is too difficult to predict what your ability to pay will be several years down the road.  The next inquiry is to determine each parents’ ability to contribute to college based on the factors that the Illinois law has provided.  

Illinois Law Addressing Educational Expenses of a Non-Minor Child

Section 513 of the Illinois Domestic Relations Law which is entitled “Educational expenses for a non-minor child” is the section that is used when a court is going to award sums of money out of the property and income of either or both parents.  A court can also order payment from the estate of a deceased parent for the educational expenses of any child of the parties.  The court has the authority to order one or both parents to pay for college until the child reaches age 23 or it can stretch to the age of 25 based on certain circumstances.  Included in the costs that parents’ may be required to pay are the college application costs (up to five colleges) and the cost of up to two standardized college entrance examinations and one standardized college entrance examination preparatory course.  

What Qualifies as “Educational Expenses”

Educational expenses include tuition and fees, housing, meal plan, medical insurance & expense, dental insurance and expense, reasonable living expenses, books, and supplies.  

If the court orders a parent to pay for college expenses, the child is required to sign a consent for the school to provide that parent with access to the child’s academic transcripts, records, and grade reports.  In addition, if a court orders a parent to pay college expenses, the child must maintain a cumulative “C” grade point average.   

If one or both of the parents have a 529 account for the benefit of the child, that account can be considered to be a resource of the child if the account was accumulated prior to a divorce.  Any contributions made by a parent after a divorce could be considered a contribution from the contributing parent.  

Factors Used to Determine the Amount of Contribution

The court will take into consideration the following in determining how much, if any, a parent must contribute to their child’s college expenses:

  1. The present and future financial resources 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.

It does seem interesting that if the parents of a child are married, the State of Illinois cannot require them to contribute to the college expenses of their children.  However, if the parents are not married, the State can require a parent to pay for college.  This was constitutionally challenged in 1978 and again most recently in May of 2018 when a father challenged the constitutionality of this law in the Illinois courts.  The local DuPage County Judge agreed with the father and held that section 513 entitled Educational expenses for non-minor children was unconstitutional.  This was appealed directly to the Illinois Supreme Court

Is the Illinois Law Requiring Unmarried Parents Pay for College Constitutional?

In this DuPage County Case, Charles D. Yakich and Rosemary A. Aulds’s daughter decided to attend Florida Gulf Coast University even though it did not offer a degree in marine biology, her chosen field of study.  Yakich agreed to pay for college if she transferred to a school where she could study marine biology and the daughter refused.  The DuPage County Circuit Court ordered both parents to contribute 40% and the daughter to cover the remaining 20% through grants, scholarships, work-study or employment.  It is noted that the daughter did not apply for grants or scholarships or get a job.  Yakich filed a motion seeking to have the law found to be unconstitutional and a motion to have his obligation to contribute to college terminated or modified based on his daughter’s noncompliance with the court’s earlier order. 

Paying for College Expenses and the Yakich Case

Yakich argued that the law requires him to contribute to college expenses but does not provide for input on where the child will go to college.  He also made the argument that the law was not applicable to married couples and thus creates two classes of children — those with married parents and those without.  DuPage County Judge Else found that section 513 was unconstitutional holding that since it was held to be constitutional in 1978 there has been a cultural evolution in that now fewer than half of families have two parents in one home.  In addition, Else pointed out that Yakich is not arguing that he shouldn’t pay for college — which he offered to do in full — but that he was forced to pay without any input on where his daughter enrolled.  Else wrote that Yakich was denied equal protection rights and stated that law “cannot reasonably be construed in a manner that would preserve its validity in this case” and vacated the order requiring the parents to pay the 40% and ruled the law unconstitutional.

The Illinois Supreme Court did not agree.  The Supremes delivered their opinion on October 24, 2019 overruling Judge Else and dismissing the appeal.  Section 513 stands in Illinois as written requiring non-married parents to contribute to the college expense of their children based on the statutory elements as detailed above.  

This posting is for educational purposes only to give you general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney-client relationship between you and the National Law Review and/or the author, and the opinions stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

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