Posted on March 29, 2022

How Disabled Must An Adult Child Be In Order To Qualify For Child Support After Age 18 In Illinois?

Children need child support because they cannot support themselves. Supposedly, at age 18 when high school is finished, children can begin supporting themselves…and thus, child support terminated. If the child goes to college, Illinois parents have a continuing obligation to support that child until they have graduated and are, presumably, self-supporting. In theory, a parent should always support a child if there is a reason the child cannot support themselves, such as a disability.

Adult Disabled Children And Child Support In Illinois

Children in Illinois who can never support themselves due to a disability can receive child support indefinitely from their parents under Illinois statute 750 ILCS 5/513.5

“[S]ection 513.5 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/513.5 (West Supp. 2015)) grants trial courts the authority to order support for an adult nonminor child with a disability.” IN RE GUARDIANSHIP OF SANDERS, 79 NE 3d 717 – Ill: Appellate Court, 4th Dist. 2017

“The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated.” 750 ILCS 5/513.5(a)

A trial court decides if the child qualifies as disabled under the standards laid out in 735 ILCS 5/513.5

“A “disabled” individual means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment. “Disability” means a mental or physical impairment that substantially limits a major life activity.” 750 ILCS 5/513.5(d)

This definition is extremely broad and virtually any disability could “substantially limit a major life activity.”

The judge will decide if the child is disabled or not for the purposes of child support for a disabled adult.

“Section 513 implicitly gives the trial judge in a proceeding brought before it the power to determine if a child is disabled within the meaning of the Act.” In re the Marriage of Lerner, 316 Ill. App. 3d 1072, 1076 (Ill. App. Ct. 2000)

“In construing section 513, the courts have used dictionary definitions of disabled…See In re Marriage of Winters, 160 Ill. App.3d 277, 282, 512 N.E.2d 1371 (1987) (“the inability to pursue an occupation or perform services for wages because of physical or mental impairment”); In re Marriage of Thurmond, 306 Ill. App.3d 828, 832, 715 N.E.2d 814 (1999) (“incapacitated by or as if by illness, injury, or wounds”).” In re the Marriage of Lerner, 316 Ill. App. 3d 1072, 1076 (Ill. App. Ct. 2000)

Either parent can petition for the child to receive child support after their 18th birthday either before or after the child turns 18.

“An application for support for a non-minor disabled child may be made before or after the child has attained majority.” 750 ILCS 5/513.5

The amount of child support an adult disabled child receives is NOT governed by the Illinois income shares guidelines child support system. The statute, instead, takes a more holistic case-by-case basis approach.

“In making awards under this Section, or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:(1) the present and future financial resources of both parties to meet their needs, including, but not limited to, savings for retirement;(2) the standard of living the child would have enjoyed had the marriage not been dissolved. The court may consider factors that are just and equitable;(3) the financial resources of the child; and(4) any financial or other resource provided to or for the child including, but not limited to, any Supplemental Security Income, any home-based support provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults, and any other State, federal, or local benefit available to the non-minor disabled child.” 750 ILCS 5/513.5(b)

The third factor, “the financial resources of the child” is especially important depending on level of the child’s disability.

Adult Disabled Children Who Work And Child Support In Illinois

There are wonderful organizations which employ or help the disabled to be employed. These positions are usually at minimum wage or even less.

Our society really wants to employ the handicapped in some capacity.

“The Secretary [of Labor], to the extent necessary to prevent curtailment of opportunities for employment, shall by regulation or order provide for the employment, under special certificates, of individuals (including individuals employed in agriculture) whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury, at wages which are…lower than the minimum wage” 29 U.S. Code § 214(c)(emphasis mine)

When a “moderately” disabled adult child is employed, is that disabled child still entitled to child support?

The trial court must determine the support necessary due to the disability and the disability’s financial affects such as “the financial resources of the child; andany financial or other resource provided to or for the child” 750 ILCS 5/513.5(c)

If the child receives Social Security Disability (usually through a qualifying parent) that child support is reduced by an equivalent amount of the dependent benefit.

“Social security dependent disability benefits replace support the child loses upon the disability of the wage earner responsible for the child’s support, and such benefits substitute for a parent’s loss of earning power and obligation to support his dependents. Thus, the source and the purpose of social security dependent benefits are identical to the source and purpose of child support—both come from a noncustodial parent’s wages or assets and both provide for the needs of the dependent child and, for our purposes, ‘no principal distinction exists between social security benefits and child support payments’ ” In re Marriage of Henry, 622 NE 2d 803 – Ill: Supreme Court 1993

It would be logical to make the same inference and reduce any child support obligation by any wages the disabled child received through their own work.

Do not expect a credit for supporting a child who a court has determined is simply lazy and not disabled.

If a court finds that the child’s employment has rendered him non-disabled, that is no bar to the parents continuing to support the child voluntarily.

“Although [a supposedly disabled adult child] did not qualify for support from either party, the parties could voluntarily provide support if they chose to do so.” IN RE MARRIAGE OF ASH v. MATSCHKE, 2021 IL App (1st) 200901 – Ill: Appellate Court, 1st Dist., 6th Div. 2021

If you have a disabled child who over 18 or is going to be over 18, your journey as a supporting parent is nowhere near over. Contact an experienced Chicago, Illinois divorce attorney to learn more about your options as your disabled child ages into society.

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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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