In part one of this article, I give you a brief synopsis of section 513, which covers contribution to college expenses in Illinois. In part two, I answered the most common question in this area, namely, what am I on the hook for? In this part three we’ll go over the second most common question, which is how am I supposed to pay for all of this? This is where things get really flexible, based on prior case law regarding this issue.
Where is all this money supposed to come from? This is where things get interesting. When the court takes a look at each party’s finances, the law says it has to take several factors into account. These factors include: your present financial resources, your future financial resources, retirement savings, property, and the financial resources of the child themselves. The court is also supposed to consider the standard of living your child would have enjoyed if the marriage had not been dissolved, in addition to the child’s objective academic performance. Okay, but what exactly does that mean? Let’s take a look at each one in turn.
“Your present financial resources” is a very vague term; it was written that way on purpose. Most people take a look at that phrase and immediately assume the court is talking about your income, or how much you earn each year. Unfortunately, that’s not even the half of it. The court will also look at things such as: how much is in your checking and savings account, how much is in your money market or trading account, how much equity is in your house, and access to financial assistance such as parent plus loans or private loans for parents of college kids. As if that were not frightening enough, the court doesn’t stop there. If you have received an inheritance, that may be fair game as well, even if you didn’t receive it until after the divorce. Most disappointingly, section 513 is one of the only areas in the Illinois Marriage and Dissolution of Marriage Act that allows the court to consider the income and assets of a new spouse. You are reading that correctly. If you have remarried since the divorce, the court can take a look at your new spouse’s assets and income in order to determine how much of your income and assets are “disposable”, and thus available for contribution to your child’s college expenses. In Illinois, not only do you have to keep paying for your children after they become legal adults, but the court may actually penalize you for getting remarried. There is a reason attorneys and divorced parents alike are not fond of this section!
“Your future financial resources” is a bit harder to pin down. The courts have generally held that this means your future earning potential and the remaining amount of working years a parent has left before retirement.
“Retirement savings and property” mean exactly what you think they mean. If you have a massive IRA or 401(k), or if you have hundreds of thousands of dollars in equity in some property, the court could theoretically order you to take a loan against it or take out a home equity loan to help contribute to your children’s college expenses.
“The standard of living the child would have enjoyed if not for the marriage being dissolved” is a very hard factor for the court to consider, and generally does not have a major impact on the court’s eventual decision.
“The child’s financial resources” is an interesting factor to consider. What this has meant historically is that any financial accounts the child has, such as a checking or savings account, will be considered to be part of the child’s contribution. In addition, courts have historically held that any scholarships or grants earned by the child by virtue of their academic performance or their athletic prowess should be considered as part of the child’s contribution also.
If you feel like this statute is stacked against you and in favor of the child, you are correct. However, you are not without some protection during this entire process. In the final part of this article I will discuss limitations of this section, burdens placed upon the child in the process, and ways that you can protect yourself financially.