Child Support and Daycare, Health Insurance, and Education Costs

Child Support Plus: Daycare, Health Insurance, Uncovered Medical Expenses,
Educational Costs, and Extra-curricular Expenses

by Wes Cowell; updated 26 June 2015 -- suggest a correction

Child support should work equity between the parties and serve the child's best interest. Basic Child Support covers necessities, but ther expenses may be added above-and-beyond the basic support payment. Need advice? Call, leave your info, or scheduleschedule a consult.

Illinois law (750 ILCS 5/505(a)(2.5))gives judges the power to tack on extras above and beyond the basic child support obligation. The law says"

(2.5) The court, in its discretion, in addition to setting child support pursuant to the guidelines and factors, may order either or both parents owing a duty of support to a child of the marriage to contribute to the following expenses, if determined by the court to be reasonable:

(a) health needs not covered by insurance;

(b) child care;

(d) extracurricular activities.

Child's Health Insurance: Illinois law (750 ILCS 5/505.2) calls for the parent paying support to also provide health insurance if it is available through his or her employer or on a group basis. It doesn't matter if the obligor (the parent paying support) signs up for insurance -- the child is still allowed to get insurance through the employer. The law (750 ILCS 5/505.2(c)) also says that if an obligor (a parent ordered to pay support) doesn't have access to insurance through employment, or if the obligor simply doesn't obey a court's order to enroll the child in the obligor's employer-offered coverage, the obligee (the parent receiving support) may enroll the child on his or her employer-offered insurance and the obligor MUST reimburse the obligee at least 50% of the cost of the premiums, and the court "may order the obligor to reimburse the obligee for 100% of the premium for placing the child on his or her health insurance policy."

Finding out What’s What: Obligors often try to run the show when it comes to health insurance. Employers give information to employees about the costs and benefits of the various policies that may be available. Obligors will sometimes lie to custodial parents about coverage possibilities either to save money or to assert control over the situation. Illinois law (750 ILCS 5/505.2(c)(2.5)) requires employers to provide information about coverage availability directly to parents receiving child support. Specifically, the law says:

(f) Disclosure of information. The obligor's employer or labor union or trade union shall disclose to the obligee or Public Office, upon request, information concerning any dependent coverage plans which would be made available to a new employee or labor union member or trade union member. The employer or labor union or trade union shall disclose such information whether or not a court order for medical support has been entered.

So, parents receiving child support should be proactive: they should find out for themselves the plans available. All they have to do is write a letter (sending it certified mail, return receipt requested, is a very good idea) to the obligor’s employer, include a copy of the child support order, and cite the law, above.

A party who is ordered to provide health insurance for a child, but fails to do so, may be liable to the receiving parent for the unpaid premiums and the medical expenses incurred by the child that otherwise would have been covered by the insurance. Because the premium payments are considered to be a kind of child support, if the payments are not paid to the insurance carrier, the court may later order them paid to the custodial parent and the additional payments will not be viewed as a windfall. See, In re: Marriage of Takata, 304 Ill.App.3d 85, 237 Ill.Dec. 460, 709 N.E.2d 715 (2d Dist., 1999). In Takata, the non-custodial parent testified as to the cost of the children's health insurance. Rather than continue with that insurance, the non-custodial parent insured the children through Public Aid at no cost. The non-custodial parent was ordered to reimburse to the custodial parent the dollar value of the private insurance.

Some employers offer more than one health insurance plan. Illinois law requires obligors who obtain insurance for their children through employment to enroll their children in the same plan in which they, themselves, enroll: what’s good for the parent is good for the child.

Uncovered Medical Expenses: Illinois law gives the court the authority to order either or both parents to pay for a child's medical expenses not covered by the insurance. These expenses are usually thought of as falling into two categories: "ordinary uncovered expenses" (like deductibles and co-pays) and "extraordinary uncovered medical expenses" (like braces, elective cosmetic surgery, etc.). This area is fertile ground for agreement writing. It is not unusual to apportion these expenses disproportionately. Consider, In re: Marriage of Raad, 301 Ill.App.3d 683, 704 N.E.2d 964 (2d Dist., 1998) in which the custodial mother had more financial resources and income prospects. The court ordered her to provide the insurance and to pay all ordinary medical expenses while requiring the non-custodial father to pay half of only the extraordinary medical expenses not covered by health insurance.

Whether the obligor obtains coverage through employmen, through the exchanges, or individually, the effort will involve some additional cost. The court may consider the cost, as well as other factors, when making its determination.

Non-Covered Expenses (deductibles, copayments, and non-covered costs and services): Health insurance can be tricky and difficult to understand. Less costly policies cover very little or have high deductible and copayment requirements. Some employers offer more than one health insurance plan. Some obligors will disregard the needs of the child and try to save money by obtaining cheap insurance that offers little in the way of real benefits. Illinois law requires obligors who obtain insurance for their children through employment to enroll their children in the same plan in which they, themselves, enroll: what’s good for the parent is good for the child.

Illinois law gives judges the power to consider a plan’s coverage, costs, copayments, and deductibles and judges can require the obligor to pay all or a portion of non-covered costs and services and additional expenses. SO when an obligor opts for the cheapest insuance around, he may be putting himself on the hook for ALL of the uncovered expenses.

Enrollment Seasons: Insurance companies usually limit enrollment in their employer-sponsored plans to a specified period – if you miss the enrollment date, you have to wait another year before the opportunity will come again. Parents ordered to pay for their children’s health insurance sometimes use this limitation as a ploy to avoid the additional expense of providing health insurance for a child. Fortunately, Illinois law (750 ILCS 5/505.2(g)(1)) requires all employers (and insurance providers) doing business in Illinois to admit children covered by a child support order to obtain insurance immediately – as soon as the court order is sent to the employer -- without having to wait for an “enrollment opening.”

Once Insurance is Turned On, It Can’t Be Turned Off: Obligors sometimes screw around with a child’s insurance in an effort to save money or exert influence over the custodial parent. Every once in a while they may stroll into the H.R. office and try to drop the child from insurance coverage. Illinois law (750 ILCS 5/505.2(g)(3)), however, prohibits an employer from removing a child from an employer-provided health insurance plan unless: 1) the employee is no longer employed and is no longer covered under the plan, or 2) the child support order is terminated or otherwise ceases to have effect, or 3) the child is enrolled in a comparable plan that satisfies the terms of the existing child order with no lapse in coverage.

Play or Pay Penalties vs. "Reasonable and Necessary": Parties may agree to share in expenses not covered by health insurance, or if they don't agree, the court may order it. In either event, one thing to think about including is a "play or pay penalty." The idea is that if the parties share the cost of the insurance and share expenses not covered by the insurance, they should use their best efforts to keep those uncovered expenses to a minimum. If one parent takes the child to care providers outside the approved network, or takes the child for procedures not covered, the other parent should not necessarily be bound to share in those expenses. Consider, for example, the case where the agreement provided that the father would be responsible for all "extraordinary medical expenses of the child . . . ." The mother sought to require the father to pay for the cost of radical treatments for Lyme disease. The treatments were offered by only one doctor in the entire country. That doctor practiced in New York, so the mother took the child to New York for treatment. The treatments had been found to be "suspect" by the New York Medical Board. The insurance carrier refused to pay for any part of the treatments. Should the father be required to pay a part of those expenses? Not according to In re: Marriage of Turrell, 335 Ill.App.3d 297, 781 N.E.2d 430 (2d Dist., 2002). The court reasoned that, though not specifically stated, the agreement implied that the father would only have to pay for expenses that were "reasonable and necessary;" that is, that they be for a method of treatment recognized by the medical community for a recognized medical need. Still, had the agreement contained a specific restriction limiting his exposure only to "reasonable and necessary" expenses or approved providers, the cost of the court case would likely could have been avoided.

Child Care: The court expects both parents to contribute to child care expenses so as to allow a parent to maintain employment, attend school or training, or even just to look for a job. They can include after-school care and any kind of work-related child care, "Camps" over winter, spring, or summer break when school is not in session.

The cost of child care is to be allocated between the parties in proportion to their respective shares of their combined net incomes. The amount must be adequate to secure "reasonable and necessary child care."

Fluctuating Costs: Sometimes a parent needs child care for certain months and not other months. We see this when a parent is employed in a seasonal industry or has a work that varies. IN these cases, the costs of child care should be averaged over the past twelve months and a regular monthly payment should be made. This allows both parents to set a monthly budget and minimize the impact of a month with a lot of child care costs. When costs are annualized and an average monthly payment is received, the recipient parent must notify the paying parent within 14 days of any change in the amount of child care expenses that would affect the annualized child care amount.

School and Extra-Curricular Expenses: Expenses for school and extra-curricular activities are not considered to be part of child support. The court, if asked, may tack on a duty to contribute to a child's extra-curricular expenses. See my article: Child Support Plus

As for "school expenses" we're usually talking about tuition at a private school. Most parents work this out between themselves but the court can deal with it if necessary. The "school expense" bucket can also carry claims for that eighth-grade-trip-to-Washington DC or the extra money needed to cover the cost of a recommended tutor. Again, the possibilities are limited only by the number of children in the world.

When it comes to extra-curricular expenses, most courts start from the position that every kid has a right to expect two extra-curricular activities -- one athletic (soccer?) and one cultural (piano?) every semester (including summer). There's nothing in the law about this -- it's just a rule-of-thumb I've seen judges apply time and again. Every kid is different and there are an infinite number of avenues down which to branch from this starting point.

The law says courts should consider only "reasonable" expenses; so don't expect to go hog-wild. Good luck.

History of SChool COsts and Extra-Curricular Expenses It used to be that these costs had to be fought about as a deviation from guideline support as part of "the needs of the custodial parent." It wasn't always easy and many judges turned a deaf ear -- some cases secured "daycare and extra-curricular expenses in addition to support" and some didn't. For example, in In re: Marriage of Serna, 172 Ill. App. 3d 1051, 527 N.E.2d 627, 123 Ill.Dec. 164 (4th Dist., 1988) the appellate court held that trial courts had the authority to allocate daycare costs between the parties outside of the child support award. The father in that case had argued that if the mother wanted to put the kids in daycare, that was fine but she would have to pay for the daycare out of the child support money. The appellate court said it wasn't that big of a deal and that the trial court could award child support PLUS daycare expenses . . . and the court didn't have to make a specific finding (to justify a deviation for the guidelines) to make that award. Conversely, in In re: Carlson-Urbanczyk v. Urbanczyk, 2013 IL App (3d) 120731, 991 N.E.2d 933, 372 Ill.Dec. 443 (3d Dist., 2013), a case similar to Serna and dealing with daycare and extracurricular costs, the appellate court said ". . . we conclude any amount above the agreed 32% of father's net income . . . represents an upward deviation from the statutory amount that must be supported by the record.

The 2013 Amendment: This confusion was addressed by the 2013 amendment to Illinois' Child Support law. That law (750 ILCS 5/505(a)(2.5)) said:

(a) health needs not covered by insurance;

(b) child care;

(d) extracurricular activities.

Unfortunately, the 2013 law doesn't answer the old question: are the additional expenses considered to be above and beyond the child support award? The line " . . . if determined by the court to be reasonable" suggested that a specific finding was needed to warrant the contribution to extra expenses. We were back to the old problem: was such an award an upward deviation from the guidelines, or not? We could look back to Sema and Urbanczyk to argue about it. It certainly didn't hurt to be thorough and include the finding but, if the finding was lacking, the award was appealable.

The 2017 Amendment: The new, 2017 law got rid of troublesome "if determined by the court to be reasonable" language. It says:

(3.6) Extracurricular activities and school expenses. 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.

That's it: as long as the school expenses or extra-curricular expenses are "reasonable," and they enhance the child's development, they're covered by the law.