Returning to college after a divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Going Back To School After An Illinois Divorce

Returning to college after a divorce in Illinois

A divorce is a big change. It is not uncommon for a divorced party to treat that change as an opportunity for self-improvement. If a soon-to-be-divorced person is foreseeing a lifestyle that goes from two incomes to one income, they are going to want to increase their income.

Most people try to increase their incomes by increasing their education and, thus, they will return to school to get additional degrees in their post-divorce lifestyle.

What happens if a former spouse goes back to school after an Illinois divorce? Does the other spouse have to pay for their college or graduate program? Does the acquisition of a degree eventually terminate or reduce maintenance?

Paying For School After An Illinois Divorce

It makes sense that the spouse who earns more should leave the spouse who earns less “better off than when he found her” (it is almost always those genders in that order)

Does this mean that a moneyed spouse should pay for spouse education if they had foregone that education for the sake of the marriage?

Ongoing support after an Illinois divorce is called “maintenance.” Support is money and money is fungible. A dollar spent on education can also be spent on spa treatments or monster trucks. The nobility of post-marital support’s purpose is usually irrelevant. Instead, maintenance is usually just based on a calculation called “guidelines maintenance.”

“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1)

In an Illinois divorce guidelines maintenance is “calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/504(b-1)(A)(1)

If this amount is not sufficient to maintain the support receiving spouse’s lifestyle and their educational expenses, a deviation from guidelines maintenance can be requested.

“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.” 750 ILCS 5/503(b-1)(2)

The factors that warrant a deviation from guidelines maintenance shall include “the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment” 750 ILCS 5/503(b-1)(6)

It is completely conceivable and allowable for a court to award an amount of maintenance which would allow a spouse to return to school and live comfortably.

A deviation in maintenance amounts can also result in a deviation in maintenance duration.

Reviewing Maintenance Based On A Divorced Party Going Back To School

Maintenance doesn’t last forever.

Guidelines maintenance duration “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(B)

An order disregarding guidelines maintenance amounts for the purpose of educational expenses must be in writing and shall include specific new instructions for how long the maintenance will last.

“[I]f the court deviates from applicable guidelines…it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and…the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/503(b-2)(2),(3)

The review period for reviewable maintenance is likely to be the period in which the parties expect the ex-spouse who is going back to school to get their degree and better employment.

“Reviewable maintenance. If a court grants maintenance for a specific term with a review, the court shall designate the period of the specific term and state that the maintenance is reviewable. Upon review, the court shall make a finding in accordance with subdivision (b-8) of this Section, unless the maintenance is modified or terminated under Section 510.” 750 ILCS 5/504(b-4.5)(1)

After the education was supposed to be complete, the Illinois divorce court can determine what the ongoing maintenance should be and for what duration the maintenance should last.

“Upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed non-modifiable term, extend maintenance for an indefinite term, or permanently terminate maintenance in accordance with subdivision (b-1)(1)(A) of this Section.” 750 ILCS 5/504(b-8)

At this point, the spouse who went back to school should be gainfully employed and, thus, their income should reduce the maintenance by 25% of the income of the new employment. Furthermore, if the new income is more than 66% of the payor spouse’s income, guidelines maintenance would be zero.

What If The Education Doesn’t Result In A Higher Income?

If a spouse gets further education or credentials, it is presumed they will also get higher paying employment eventually. This is not always the case.

The dream job may not be available. Or, the dream job may not be available to the spouse who went back to school after years of homemaking and then divorce.

Older students often find that the world of starting positions is not geared towards older people. The starting-position job market is even less accommodating to older people with children.

In such an instance, both parties will have to appeal to the court to extend, reduce or terminate support after school is complete and the job search has been deemed fruitless.

An Illinois divorce court will then assess whether the party’s efforts have been sufficient to warrant a continuation of support.

“[I]f a court finds that a party is not making a good-faith effort to earn sufficient income, the court may set or continue that party’s support obligation at a…level appropriate to the party’s skills and experience.” In re Marriage of Sweet, 316 Ill. App. 3d 101, 107 (2000)

Child Support And Going Back To School After A Divorce

Going to back to school is especially problematic if the person going back to school is the child support payor.

Child support in Illinois is based on the incomes of both parents and then applying those incomes to a complicated formula which determines the non-custodial parent’s financial obligation to the other parent.

“The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and(D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(A)(1.5)

Going back to school usually means not working full time. Failure to work full time means that a parent is not earning at a level commensurate to their potential.

“If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community.” 750 ILCS 5/505(a)(3.2)

“[I]f a court finds that a party is not making a good-faith effort to earn sufficient income, the court may set or continue that party’s support obligation at a higher level appropriate to the party’s skills and experience.” In re Marriage of Sweet, 316 Ill. App. 3d 101, 107 (2000)

Failure to earn more due to going to school may be deemed a “good-faith effort” if the court believes that the motivation was self-improvement and not child support evasion.

“The test for determining if a decision was made in good faith is whether the change was prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests.” In re Marriage of Webber, 547 NE 2d 749 – Ill: Appellate Court, 4th Dist. 1989

The level of good faith will be determined by the testimony of the school attending parent. If that parent can properly communicate that they are going to school in order to have more resources available for their children including more child support in the future, a court will probably allow the present child support to remain lower.

The average divorce judge attended undergraduate and graduate school for at least 7 years. Judges will be sympathetic to divorce litigants who want more education. Sooner or later, the education must end and post-divorce mutual responsibilities must reflect this inevitability.

If you are trying to go to school after a divorce or your spouse has announced they are returning to college contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.