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Illinois Court Questions Law Requiring Divorced Parents to Pay for CollegeThe Illinois Supreme Court has upheld a portion of the state’s divorce law that can order both parents to help pay for a child’s college education, in response to a circuit court judge who ruled that it was unconstitutional. The circuit court judge had decided that forcing a divorced parent to contribute to college expenses is a violation of the 14th Amendment to the U.S. Constitution, which promises equal protection under state laws. Rather than argue the merit of the claim, the supreme court said that the circuit court judge lacked the authority to strike down the law because the supreme court had previously ruled that the law was constitutional. Only the supreme court has the authority to overturn that ruling, it said.

College Expenses

The law in question is Section 513 of the Illinois Marriage and Dissolution of Marriage Act, which states that courts may order divorced parents to use their assets and incomes to pay for a child’s post-high school education. Expenses may include:

  • Tuition
  • Housing
  • Books and supplies
  • Reasonable living expenses
  • Medical expenses

Divorced parents can share these expenses by allocating assets in their divorce agreement towards paying for college or continuing child support payments until the child graduates with a bachelor’s degree or turns 23, whichever happens first. The age deadline can be extended to 25 if good cause is shown. Continued child support payments may be dependent upon the child’s academic performance.

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Understanding Illinois’ Shared Parenting Child Support FormulaIllinois calculates the child support payments that one parent owes the other by using an income shares table. To determine your child support payments, you would start by adding up the combined net incomes of yourself and your co-parent. Each row in the income shares table has an income range. When you find the row where your combined incomes fall, you will go across to the column for the number of children you share. The number you see is the base level of the combined child support obligation that you must pay together each month.

Your proportionate incomes will determine the share of the child support obligation that each of you are responsible for. If your income is 60 percent of your combined incomes, then you are responsible for 60 percent of the child support obligation. The nonresidential parent is typically the one who pays child support to the residential parent, even if they have a lower income. The formula for determining the payment amount changes when parents have a shared parenting arrangement.

Shared Parenting Formula

Illinois defines shared parenting as a parenting schedule in which each parent has the children overnight at least 146 times per year, which would be a 60-40 division of parenting time. The formula for calculating child support in a shared parenting arrangement is more complicated than the basic formula:

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Remarriage Can Affect Child Support PaymentsParents who divorce are required to create a child support agreement in order to share the cost of child-related expenses. Illinois currently uses an income shares model that determines how much each parent should pay based on their proportionate incomes. If a parent’s income makes up 70 percent of their combined incomes, that parent will pay 70 percent of the child support obligation. Either parent can request a modification of the child support order, based on a significant change of circumstances, such as: 

  • A change in a parent’s income;
  • A change in the expense of raising a child; or
  • A child becoming a nondependent.

In certain situations, child support may be modified when one parent remarries.

Available Income

Illinois will not include the income of a new spouse when calculating a parent’s child support obligation. A stepparent is not required to financially support a child, and combining the incomes of a biological parent and stepparent would effectively force the stepparent to do so. A new spouse could affect a parent’s ability to pay their child support obligation. A parent may claim that a child support obligation is unreasonable if it does not leave them with enough money to pay for their own living expenses. Illinois courts have the discretion to deviate from the child support formula to create affordable payments. Remarriage changes a parent’s available income because spouses will combine their incomes and share their expenses. A new spouse could pay for a parent’s living expenses, freeing the parent’s income for other expenses. In such a situation, the other parent could request that the remarried parent pay child support based on the normal calculation.

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Determining Child Support With an Inconsistent IncomeIllinois calculates the percentage of child support that each parent owes based on their comparative net incomes. The parent who earns a greater income will pay a proportionate share of the child-related expenses. However, child support can be more complicated when one of the parents has an income that varies by month, due to:

  • Working overtime;
  • Receiving bonuses; or
  • Working for a commission.

Extra pay is part of a parent’s net income but usually not included in the child support calculations. How do you ensure that your co-parent is paying a fair amount of child support when he or she cannot give a consistent monthly income? There are three methods of dealing with this:

  1. Calculating the Average: You can add your co-parent’s income from a period of several months and determine his or her average income, which becomes the basis for the child support payments. This is the simplest method because you are establishing a consistent income amount. However, it can be the least accurate depending on how much your co-parent’s income fluctuates. You may need to revisit your child support payments if his or her monthly income greatly deviates from the past average.
  2. Monthly Supplements: Your co-parent may have a base wage that he or she receives each month. You can use that amount as your co-parent’s base monthly income and supplement it each month with any additional pay that he or she receives. This method requires more work because your co-parent must submit his or her pay statements each month. Your child support contributions will reflect your respective incomes, but you are trusting that your co-parent is providing you with accurate information.
  3. True-Up: You can use the third method in conjunction with either of the first two methods. With a true-up, your co-parent provides the pay statements and W-2 income form from the previous year to determine what he or she should have paid in child support for that period. If your co-parent underpaid you, he or she must reimburse the difference. If your co-parent overpaid you, he or she will receive a credit towards future child support payments. You and your co-parent must have a good level of communication and trust for this method to work.

Contact a DuPage County Divorce Attorney

Illinois determines your child support obligation based on the expected cost of raising your children. Allowing your co-parent to exclude income is taking resources away from your children. A Warrenville, Illinois, divorce lawyer at Calabrese Associates, P.C., can make sure that your co-parent is contributing an appropriate amount to your parenting expenses. Schedule a consultation by calling 630-393-3111. 

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Adjusting a College Financing Plan During DivorceGetting divorced can disrupt years of careful planning to pay for your children’s college educations. Both you and your co-parent may not have the financial resources to continue regular payments into a college fund. You may need to adjust your plan, which you can establish in your divorce agreement. Financial aid will also become more important, and your divorced status may increase the amount of aid that your child will be eligible to receive.

College Payment Plan

Illinois law allows you to petition to continue child support payments in order to pay for college after your child has turned 18. However, it may be more efficient to include a college financing plan as part of your divorce agreement than to try to extend your child support payments in the future. You can specify how you will divide the college expenses and other details, such as:

  • Limits on annual payments;
  • How many semesters the payments will continue;
  • What constitutes college expenses, such as textbooks and off-campus housing;
  • Whether there is an age limit for the student;
  • Whether there are restrictions on which college the student may attend, such as a public vs. a private school;
  • Whether the student must maintain a certain grade-point average; and
  • Whether the payments should go to the other parent, the student, or the school.

Financial Aid

College financial aid is available to students who fill out a Free Application for Federal Student Aid or a CSS Profile at participating colleges. Application reviewers will use the income of the student’s parents to determine how much aid the student is eligible for. With FAFSA, a student of divorced parents can report only the income of the parent he or she lives with for a majority of the time. FAFSA will use the parent who pays a greater amount of child support if parenting time is divided equally. Both child support and spousal maintenance payments are part of your income, but a single parent likely has less income than a two-parent household, which should qualify your child for greater financial aid. With CSS financial aid, some colleges require the students to submit incomes from both of their divorced parents.

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