Posted on February 11, 2022

Private School And Divorce In Illinois

Illinois has some great public school systems…and some terrible public school systems. Parents often put their children in private school to avoid the public schools. The private school fees are worth it. The kids are worth it!

When the parents get divorced, one household with two incomes becomes two households with one income each. Often, a divorce’s division of a family’s incomes and doubling of expenses means that the children’s private school educations are in jeopardy.

What right does a parent have to keep their children in a private school during and after an Illinois divorce? What right does a parent have to remove their children from a private school during and after an Illinois divorce? Who pays for private school during and after an Illinois divorce.

Private School During An Illinois Divorce

If the children are attending private school during the pendency of an Illinois divorce, they will stay at that private school until the court orders otherwise.

If a parent withdraws the children from the private school or refused to pay tuition, the other parent can file a motion to maintain the status quo.

“Either party may petition or move for:(1)…temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested.” 750 ILCS 5/501(a)

The affidavit accompanying the motion can explain that the children are in private school and that tuition is due. Support can be in the form of money for tuition or money to the other parent that will presumably be applied towards tuition.

Furthermore, an Illinois divorce court can forbid a parent from withdrawing a child from a school and order said parent to discuss options with the financial aid department of that school.

An Illinois court can order “other appropriate temporary relief” 750 ILCS 5/501(a)(3)

There is a strong bias in courts to preserve the status quo until the court knows what’s really going on. This is usually done by way of injunction.

Forbidding a party in a divorce from doing something is called an “injunction.” An injunction won’t last forever but it will keep things in place until an actual full evidentiary hearing is performed.

“A preliminary injunction is merely provisional in nature, its office being merely to preserve the status quo until a final hearing on the merits. The status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy. A preliminary injunction, therefore, is not proper where it tends to change the status quo of the parties rather than preserve it.” In re Marriage of Schwartz, 475 NE 2d 1077 – Ill: Appellate Court, 1st Dist. 1985 (Citations Omitted)

Temporary orders regarding private schools in an Illinois divorce are…temporary.

“A temporary order entered under this Section:

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)

A temporary order “does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;” 750 ILCS 5/501(d)(1)

After a full evidentiary hearing“the temporary order has fulfilled its purpose and is superseded by the final—or permanent—order….Once the trial court enters the final order, an assumption arises that the court has thereby adjusted for any inequity in its temporary orders.” In re Marriage of Fields, 283 Ill. App. 3d 894, 901 (1996).

Private School After An Illinois Divorce

In the final judgment for dissolution of marriage, a divorce court will allocate one or both parents the right to make decisions for the children.

“The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child” 750 ILCS 5/602.5(b). 

One of the “significant issues” the court can assign decision making responsibility for is “Education, including the choice of schools and tutors.” 750 ILCS 5/602.5(b)(1)

The parties usually agree on education and include a clause regarding education in their Allocation of Parenting Time And Parental Decision Making. In 99% of cases, the parties share decision making regarding education.

The clause will usually look like this:

Education: With respect to the choice of school enrollment, special educational services and therapies, through choice of any post-secondary education, and for all other tutoring and educational needs, the parties agree that [MOM] and [DAD] shall have joint decision-making responsibility to make significant decisions regarding education for the minor child. The parties have previously determined that the minor child will attend [Name of Private School] from fall of 2021 to the spring of 2025, the minor child’s anticipated graduation year from said high school.”

If the parents cannot agree on whether to keep the child in private school or put the child in private school, “The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 5/602.5

The court will not officially pick out what school the child will attend but, rather, which parent will make that decision. The court picks the parent who makes decisions in the best interest of the child.

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:

[T]he wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;

[T]he child’s adjustment to his or her home, school, and community;(3) the mental and physical health of all individuals involved;

[A]ny prior agreement or course of conduct between the parents relating to decision-making with respect to the child;

[T]he wishes of the parents;

[T]he child’s needs;

[T]he distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement’

And; [A]ny other factor that the court expressly finds to be relevant.” 750 ILCS 5/602.5(c)

This is a real cornucopia of factors for a court to consider. Typically, courts cannot really get to the bottom of all of these factors themselves. Illinois divorce judges see upwards of 50 cases a day and they cannot personally investigate which school is best for which child. So, courts appoint Guardian Ad Litems and Child Representatives to investigate for the court.

The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(c)

In reality, the court is going to award educational decision making to the parent who is advocating that the child go to the school which is best suited for them.

“[S]chool quality [is] a relevant factor in determining a child’s best interests.” In re Custody of GL, 80 NE 3d 636 – Ill: Appellate Court, 1st Dist., 3rd Div. 2017

[I]n some instances it may be proper for the court to provide for a child’s attendance at a private school, the child’s access to a less expensive public institution is a factor to be considered.” In re Support of Pearson, 490 NE 2d 1274 – Ill: Supreme Court 1986

If the parents cannot afford private school after an Illinois divorce, then private school is not even a real option for parent deciding on the child’s educational opportunities. Therefore, a parent insisting on an unaffordable private school will not be given decision-making responsibilities for private school.

Who Pays For Private School After An Illinois Divorce?

If you agree to the child attending private school, you are going to have to pay a portion of those private school expenses.

“We do not believe that the respondent could have agreed to place his child in a private school and then complain that a private school education and its attendant expenses were unnecessary.” In re Marriage of Dulyn, 411 NE 2d 988 – Ill: Appellate Court, 1st Dist. 1980

If you don’t like the private school that does not mean you do not have to pay for private school.

“The source of a court’s authority to order a noncustodial parent to contribute to a minor child’s private school education lies in section 505(a)(2)(d) of the Act, which sets forth the factors which are relevant to a determination of child support. One of those factors is the educational needs of the child. (Ill.Rev.Stat.1991, ch. 40, par. 505(a)(2)(d).) Were it not anticipated that a court could order a noncustodial parent to contribute to the private school education of a minor child, it would be unnecessary in many cases for a court to consider a child’s educational needs, since public schools typically involve little cost to parents.” In re Marriage of Alexander, 596 NE 2d 1335 – Ill: Appellate Court, 4th Dist. 1992

If the parties cannot come to an agreement as to splitting private school fees, an Illinois court can order the parties to pay for private school.

“The court, in its discretion in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable school and extracurricular activity expenses incurred which are intended to enhance the educational, athletic, social, or cultural development of the child.” 750 ILCS 505(a)(3.6)

Courts will likely look to the specific requirements for allocating “child care expenses” as the concept is similar to private school expenses. If that’s the case, the court will allocate private school expenses based on the proportion of each parent’s net income.

“Child care expenses shall be prorated in proportion to each parent’s percentage share of combined net income, and may be added to the basic child support obligation if not paid directly by each parent to the provider of child care services.” 750 ILCS 5/505

Parties will be encouraged to contact the financial aid office of their children’s private school to inquire as to whether their divorce has made the children eligible for modified or reduced tuition.

Pulling A Child Out Of Private School Or Putting A Child Into Private School After An Illinois Divorce

If something has happened which necessitates that a child be withdrawn from private school or put into private school, that is a decision for the parent awarded educational decision-making.

If the parent with that power doesn’t agree to the child going to a new school, the allocation of parenting time and parental responsibilities must be modified. As educational decision-making is usually shared between both parents, this means requesting that the parent objecting to the new school be removed from the decision-making process.

If the school change is within 2 years of the last order…there is going have to be a very serious change in the child’s environment.

“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)

Upon making the determination “there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development” the court may change the parent with the decision-making responsibility for the child’s education after an evidentiary hearing.

“[T}he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)

This will always be done by comparing a child’s needs with the resources of the child’s current school and the resources of the proposed school. The costs will be a secondary factor. If a necessary private school can be afforded, the necessary private school will be afforded.

If you have questions about your children’s education in the wake of your divorce, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

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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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