Illinois courts have long required parents to support their adult children while they are in college but as of January 1, 2016, parents may now be obligated to support their adult children if they are physically or mentally disabled.
“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. *** 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(a)
Section 513.5(b) provides that, when making an award under section 513.5, the trial 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 ***.” 750 ILCS 5/513.5(b)
These four factors are what the court should consider in determining the exact amount that the adult disabled child should be awarded.
Under its plain language, section 513.5 grants trial courts the authority to order a former spouse to contribute support for an adult disabled child of the former spouse…Section 513.5 explicitly provides that the application for such support may be made before or after the child attains majority, so long as the nonminor child is “not otherwise emancipated.” In re Guardianship of Sanders, 2017 IL App (4th) 160502 (citations omitted)
Furthermore, a court may refuse to impute income to the parent caring for a disabled child. Thus, increasing the support awarded to the child’s caretaking parent.
“[W]e conclude, based upon the evidence presented, the court could reasonably find [the caretaking parent] was unable to work (obtain an income-paying job) due to the time and effort she must expend to care for [the disabled child].” In re Marriage of Stine, 2023 IL App (4th) 220519 (May 23, 2023)
The only way to void an award of support is if the adult disabled child becomes “emancipated” which implies some level of independent living. Unfortunately, this is very rare for children with extreme cases of mental or physical disability.
However, the possibility of emancipation indicates that a spouse could possibly ask for support for an adult disabled child by expanding the definition of disabled to include possible addiction issues or milder mental illness cases (ADD or ADHD). No Illinois court has considered these possibilities as of this date.
In practice, I have found that the courts will often consider that the obligation of a parent to a disabled adult child is eliminated once the adult child is receiving social security disability insurance. The theory was that social security disability insurance provided for the disabled child…so the parent doesn’t have to provide support. Your lawyer should remind the judge that the law has changed since 2016 and support extends indefinitely in the case of a disabled child.
As always, in sensitive situations involving children, I recommend that the parties discuss and mediate amongst themselves before taking the matter in front of a judge. Cooperation and compliance regarding ongoing child support is always easier under these circumstances.
Contact my Chicago, Illinois law firm to learn what rights you and your disabled child have under the Illinois Marriage and Dissolution of Marriage Act.