Can I Be Required to Pay for College and Post-Minority Support After My Divorce?

pay for collegeIs Post-Minority Support Unconstitutional?

Divorcing with college-age children may lead to the inevitable question of who will pay for college expenses of the child. In Illinois, Section 513 of the Illinois Marriage and Dissolution of Marriage Act controls this question. Section 513 provides that the Court may require either party to contribute to the educational expenses of a child over the age of 18. These educational expenses may include tuition and fees, housing expenses, medical expenses, living expenses of the child, and the cost of books and supplies. The important thing to note here is that this section says “may,” because parents are not required to contribute the post-secondary expenses of their children with the same certainty as when the child is under the age of 18.

This statute has been challenged in the past and found to be constitutional. Specifically, in 1978, the Illinois Supreme Court decided a case challenging the constitutionality of Section 513. The Court said the statute was constitutional and discussed their belief that children of divorced parents were less likely to receive assistance from their parents for college education than children of married or single parents.[1] In 1988, the Second Appellate District said that this rationale also applied to cases where the parents had never been married. [2]

The reasoning behind these 1978 and 1988 cases may seem outdated now. In Illinois the “average” family, statistically, is no longer a two-parent married household, in fact in 2011 only 46% of children under age 18 lived in a two-parent married household. [3]

A recent DuPage County case brought these changing norms to light when it again challenged the constitutionality of Section 513. [4] In this case, Yakich v. Aulds, both parents were ordered to pay 40% of the college expenses for their daughter and the daughter was ordered to pay the final 20%. However, the mother paid the daughter’s portion of the expenses.  The father, Yakich, argued that parental decision-making with respect to college contribution exists for married persons, but this input ends for non-married couples, and he was therefore unable to give meaningful input into his daughter’s college decision-making process. He further argued that because of this lack of input, non-married parties can be forced to bear a burden with respect to their child’s college expenses when they had no say in where their child went to school or how much tuition cost. This obligation, he argued, does not exist for parties who are married or single, who are not required to contribute to their children’s college expenses, violating the equal protection clause. The Court largely agreed with the father in this case and found that divorced or never married parents are not provided the same input and ability to educate their children as married persons are permitted. Further, because the Court found that there is no rational basis for this difference, it determined that equal protection was denied to the father in this case and Section 513 was unconstitutional as applied to him.

This case does not completely abolish Section 513, as it only decided regarding one specific situation.  However, it puts this statute on the chopping block if other Courts were to agree with the Yakich v. Aulds Court and find other circumstances in which a party being required to pay college expenses would be unconstitutional.

TheYakich v. Auldscase is currently on appeal. We will keep this blog updated when the higher courts give their ruling.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

[1]Kujawinksi v. Kujawinski, 71 Ill.2d 563 (1978).

[2]Rawles v. Hartman, 172 Ill.App.3d 931 (2d Dist., 1988).

[3]Yakich v. Aulds, 15-F-651 (DuPage Cnty May 4, 2018) (citing Livingston, Gretchen “Fewer than Half of U.S. Kids Today Live in a ‘Traditional’ Family,” PewResearch Center, December 22, 2014, http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family.

[4]Yakich v. Aulds, 15-F-651 (DuPage Cnty May 4, 2018).

 

Why And How To Establish an LLC

Establish an LLCIf you’re starting a small business, one of your first questions is probably whether you should establish your company as an LLC. It can be a bit of a bureaucratic nightmare and it’s another expense you have to consider, along with all the other costs associated with getting your business up and running (business cards, a website, etc. It all adds up). When you’re just starting out, you’re on a tight budget, which leaves you with the question: Is it worth it to establish your business as an LLC?

Protect Yourself from Liability

LLC stands for “limited liability corporation” and one of the main benefits of establishing your business as an LLC is to protect yourself from any personal liability in the event something goes wrong with the company. For example, if the company gets sued, they won’t be able to use your personal assets – only the company’s assets.

This is especially beneficial if you’re married. If you don’t establish an LLC and you get sued because of something related to the business, not only are your personal financial assets up for grabs, those of your spouse might be as well.

Taxes

An LLC does not have to pay federal taxes. This does not mean you and your employees and/or business partner(s) don’t get taxed for the income you bring home – it just means the business itself does not get taxed. That income gets distributed to all the members of the LLC, each of whom then has to pay federal and state income taxes on that money.

The reason it’s beneficial to not have the company itself get taxed is because not all of the money the business brings in will go straight into your pocket – there will be business expenses you’ll have to cover and it will give you peace of mind knowing you won’t have to pay taxes on that money before paying for things like rent and utilities for your office, not to mention your employees’ salaries. It also means you won’t have to pay the government twice by paying corporate taxes, followed by your own income taxes.

But just because you don’t have to pay federal taxes doesn’t mean you should forget about state taxes. Depending on where you live, your LLC might have to pay state taxes. For example, in Illinois LLCs do have to set aside 1.5% of their net income to pay the personal property replacement tax.

What Do I Need?

To establish your company as an LLC, you need to file an article of organization, which you can find at your local secretary of state’s office (these days you can probably find it on their website). Once you have completed the form, you need to file it with your secretary of state’s office in order for the LLC to legally come into existence.

Keep in mind that any mistakes on the form could result in a delay in getting your LLC established while you go over the form trying to figure out where you went wrong. This is why it’s so important to have a qualified attorney at least look over the form and help you file it. Ideally, they should be with you every step of the way so you can avoid do overs.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

Understanding Your Rights On Appeal

appealTo understand your rights on appeal, it is first necessary to realize that an appeal is not a completely new trial.  Rather, an appeal is a review of the trial court’s decision to determine whether that decision was made in accordance with the law and applicable facts.  The party who was unhappy with the trial court’s decision (the appellant) is the one who brings the case to the appellate court to ask for this review.  The party who was satisfied with the trial court’s decision (the appellee) will argue for the trial court’s decision to stay in place.

In Illinois, if you appeal a case, three appellate court judges will review the case and consider arguments from the parties.  After looking at the trial court’s ruling and the case and listening to the arguments from both sides, the appellate court will issue a ruling as to whether it is maintaining or reversing the decision of the trial court.

One of the complicated issues in appeals is understanding what decisions can be appealed. This can sometimes be a murky area. Generally, a final judgment in the trial court may be appealed. [1] A final judgment is considered one which resolves all issues and rights in a case. [2]

Family law cases can sometimes be difficult to navigate when it comes to the appeals process, as more times than not, multiple issues are involved and may not be resolved at the same time.  For instance, one family case may involve issues of divorce, child custody, child support, distribution of property, maintenance and other issues. Under the final of judgment rule, generally, all issues would need to be resolved before an appellate court would have authority to review the decision of the trial court.  This means that orders on temporary matters, such as temporary child support or interim fees, will generally not be appealable until there is a final order on the issue. [3] These types of orders are not final judgments as the issue is still pending and will need to be completely resolved by the trial court by the end of the trial court proceedings.

However, Illinois provides an exception to this rule in some cases.  If the trial court judge decides some, but not all, issues, it can also issue a written order stating that there is no reason for delaying an appeal on the decided issue(s). [4] If this happens, a party who wants to immediately appeal the issues that have been decided may do so, rather than waiting for the trial court to resolve all issues.

Some issues that are likely to be given this immediate appellate approval are child custody and the division of parental responsibility.  In fact, in Illinois, appeals on these issues are expedited so that the appellate court generally hears them more quickly than it would an appeal in another case. [5] Additionally, if a party is appealing multiple issues that include child custody or parental responsibilities, the issues will all be heard together.

For more information and help regarding your rights in an appeal or other matters, please contact Sherer Law Offices at (618) 692-6656.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

Past results do not guarantee future results. Every case is different and is decided on its own merits. Any testimonials or endorsements regarding services do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

The choice of a lawyer is an important decision and should not be based solely on advertisements.

 

[1]Ill. Sup. Ct., R 301 Method of Review.

[2]Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 259 Ill. Dec. 729, 759 N.E.2d 509 (2001).

[3]2 Gitlin on Divorce § 16-8 Appeals (2018)

[4]Ill. Sup. Ct., R 304 Appeals from Final Judgments that do not Dispose of an Entire Proceeding

[5]1 Gitlin on Divorce § 11-18 Mandatory Accelerated Disposition of Child Custody or Allocation of Parental Responsibility Appeals (2018)

 

The choice of a lawyer is an important decision and should not be based solely on advertisements. See additional disclaimers here.