Our previous article entitled “College Expenses-Navigating the Legal Framework” introduced you to the topic and the relative statutes. This section is a discussion of what is included in setting the obligation for college expenses. There are some distinct guidelines which provide information about what to expect when dealing with the issue of college expenses.
What expenses are included? Eligible expenses, or the expenses that fall under the category of post-highschool expenses that a parent may be ordered to pay, are set by statute unless the parties agree otherwise in their settlement agreements. Section 513(a) gives courts authority to order contribution toward tuition, fees, registration and application costs, books and supplies, room and board, dues, transportation, medical expenses, and living expenses. Absent an agreement between the parties otherwise, case law indicates that parents are only obligated to pay for up to a Bachelors degree and at a state-school rate. A common question arises when there is a vast difference in the expenses associated with a school in Illinois versus an out of state college. The statute does not clearly limit the expenses to those at Illinois based universities. However, many Judges have limited the awarded to the standard of an Illinois public university. Yet this is not always the case – where the lifestyle the child would have enjoyed if the parents stayed together included the ability to pay for a more expensive school, the parents could be obligated to pay that higher tuition. Every case is different. The scope of eligible expenses may be limited or expanded based on the family’s financial resources and the necessity given the child’s course of study.
Parents who anticipate future conflicts or want to limit their future liability often will state a specific, finite list of eligible expenses in the settlement agreement. Parents have also specified the type of school that the parties’ deem eligible, such as vocational school, trade school, associates’ programs, graduate school, and even airplane administration school versus just the traditional four-year college.
It is particularly important to not only ask WHAT expenses are eligible, but also WHEN will the expenses be incurred. It was common practice to say in a settlement agreement that post-high school expenses are reserved since no one could predict what the parties’ abilities to pay and the child’s needs would be in the future. Recent case law has held that if the settlement agreement only says “contribution reserved,” or language to that effect, the court does not have authority to order the allocation of college expenses incurred before the matter is brought before it (i.e. “pre-petition” or “retroactive” expenses). In other words, if one parent made the first tuition payment and the other refused to contribute, causing the first parent to file a petition with the court to compel the other parent to pay, the court could only allocate future expenses and not the first tuition payment.
If your settlement agreement says “the parties shall contribute pursuant to Section 513 as then in existence” or uses similar language, the court has authority to allocate past and future expenses since the obligation to pay is established, the obligation is mandatory, and the court retains jurisdiction. The remaining issue for the court is how to divide those expenses according to each parents’ and child’s ability.
If your settlement agreement is a combination of the two, such as “the parties shall contribute” plus “the issue of contribution is reserved” or “the allocation of expenses is reserved,” courts will most likely deem the parents obligated to contribute to pre-petition and future expenses.
Finally, if the settlement agreement is totally silent on the issue of college expenses, meaning Section 513 alone governs, the court only has authority to allocate post-petition or future expenses.
Should you have questions regarding college issues, we invite you to contact our office to schedule a free consultation.
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