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Indiana Law on Expenses for child's education and health care 2
This post follows up on my Indiana Law on Expenses for child's education and health care.
The following is from GUIDELINE 6. ADDITIONAL COMMENTARY from the Guidelines.
The data upon which the Guideline schedules are based include a component for ordinary educational expenses. Any extraordinary educational expenses incurred on behalf of a child shall be considered apart from the total basic child support obligation.Technically, the educational expense is not child support. There can be a child support order for a child attending school while living at home. That we call educational benefits "child support" for schooling after high school is our bowing to the common terms - such as calling dissolution of marriage a divorce.
Extraordinary educational expenses may be for elementary, secondary or post?secondary education, and should be limited to reasonable and necessary expenses for attending private or special schools, institutions of higher learning, and trade, business or technical schools to meet the particular educational needs of the child.I would say we are seeing more cases for post-high school educational expenses but the Guidelines allow for other educational expenses. See the discussion just below of IC 31-16-6-2.
a. Elementary and Secondary Education. If the expenses are related to elementary or secondary education, the court may want to consider whether the expense is the result of a personal preference of one parent or whether both parents concur; if the parties would have incurred the expense while the family was intact; and whether or not education of the same or higher quality is available at less cost.I read this section of the commentary and think that the Guidelines limit themselves to private schools. That seriously limits the reach of the Guidelines in an unnecessary way. If the child has educational problems needing a tutor or other special needs, the Guidelines provide relief.
b. Post?Secondary Education. The authority of the Court to award post?secondary educational expenses is derived from IC 31?16?6?2. It is discretionary with the court to award post?secondary educational expenses and in what amount. In making such a decision, the court should consider post?secondary education to be a group effort, and weigh the ability of each parent to contribute to payment of the expense, as well as the ability of the student to pay a portion of the expense.If you do not want to follow that link, here is IC 31-16-6-2:
Now back to the Commentary to the Guidelines:(a) The child support order or an educational support order may also include, where appropriate:(1) amounts for the child's education in elementary and secondary schools and at postsecondary educational institutions, taking into account:(A) the child's aptitude and ability;(2) special medical, hospital, or dental expenses necessary to serve the best interests of the child; and
(B) the child's reasonable ability to contribute to educational expenses through:(i) work;(C) the ability of each parent to meet these expenses;
(ii) obtaining loans; and
(iii) obtaining other sources of financial aid reasonably available to the child and each parent; and
(3) fees mandated under Title IV-D of the federal Social Security Act (42 U.S.C. 651 through 669).
(b) If the court orders support for a child's educational expenses at a postsecondary educational institution under subsection (a), the court shall reduce other child support for that child that:(1) is duplicated by the educational support order; and
(2) would otherwise be paid to the custodial parent.
If the Court determines that an award of post?secondary educational expenses is appropriate, it should apportion the expenses between the parents and the child, taking into consideration the incomes and overall financial condition of the parents and the child, education gifts, education trust funds, and any other education savings program. The court should also take into consideration scholarships, grants, student loans, summer and school year employment and other cost?reducing programs available to the student. These latter sources of assistance should be credited to the child's share of the educational expense unless the court determines that it should credit a portion of any scholarships, grants and loans to either or both parents? share(s) of the education expense.
The following contains an example of a silence in the statute that finds voice in the Guidelines:
Current provisions of the Internal Revenue Code provide tax credits and preferences which will subsidize the cost of a child's post?secondary education. While tax planning on the part of all parties will be needed to maximize the value of these subsidies, no one party should disproportionately benefit from the tax treatment of post?secondary expenses. Courts may consider who may be entitled to claim various education tax benefits and tax exemptions for the minor child(ren) and the total value of the tax subsidies prior to assigning the financial responsibility of post?secondary expenses to the parents and the child.If your divorce or paternity decree do not mention educational expenses for the child, then you need to file a petition to modify support. If you need a lawyer to handle a child support case for you, please give me a call.
This discussion continues in Indiana Law on Expenses for child's education 3: What Are Educational Expenses?.
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