Emancipation & Reducing Child Support

Emancipation & Reducing
Child Support

by Wes Cowell; updated 12 July 2016 -- suggest a correction

When an only child emancipates, support may stop automatically. When one of several children emancipates, the parents must return to court to re-set child support.There is no such thing as "de facto emancipation; but children CAN 'Unemancipate." Need advice? Call, leave your info., or scheduleschedule a consult.

I came across the term “de facto emancipation” in an article about child support and it didn’t make sense to me. I had never heard of “de facto” emancipation. In my experience (in family court), usually children emancipate at 18. “So,” I wondered, “what’s this business about de facto emancipation?”

If you want to skip all the history and analysis and just get the short answer, skip to the last two paragraphs titled “Conclusion.”

Today, Illinois’ child support law (750 ILCS 5/505(a)) says that child support stops when the child reaches age 18. Since 2003 the law has defined “child” (for purposes of child support) to include “any child under age 19 who is still attending high school.” (P.A. 93-876). It wasn’t always this way, however. It used to be, under the common law, that courts simply lost jurisdiction when the kids reached 18.

Then, in 1970 the appellate court resolved an emancipation case by looking to Illinois’ probate law for definitional guidance and said that “males become of age when they are 21 and females become of age when they are 18 years of age.” Wilson v. Wilson, 122 Ill. App. 2d 142, 257 N.E.2d 810 (2d Dist., 1970). That was the rule until 1977: 21 for boys and 18 for girls. Waldron v. Waldron, 13 Ill.App.3d 964, 301 N.E.2d 167 (5th Dist., 1973).

In 1977 the divorce law was amended to stop child support at 18 for girls and boys. Still, historically, support usually ended prior to the child’s 18th birthday — mainly because the child moved on in life and no longer needed the support. Each case was decided on its own facts. As a result, Illinois has a robust common law defining “self-emancipation.” There’s nothing in the modern statute about these things, however. Nothing in the statute says what happens when a child enlists in the military, gets married, gets pregnant, drops out of school, is incarcerated, institutionalized, or just bums around and doesn’t seem worthy of support, etc. So, even today, we must look back to the precedents set by those early cases to see what to do.

To complicate matters, “educational (college) expenses” are now considered a form of child support according to a bunch of Illinois cases. In Re: Marriage of Petersen 2011 IL 110984, 955 N.E.2d 1131, 353 Ill.Dec. 320 (Ill., 2011), citing In re: Marriage of Sreenan, 81 Ill.App.3d 1025, 37 Ill.Dec. 458, 402 N.E.2d 348 (2d DIst., 1980), In re: Marriage of Coram, 86 Ill.App.3d 845, 42 Ill.Dec. 40, 408 N.E.2d 418 (5th Dist., 1980), In re: Marriage of Waller, 339 Ill.App3d 743 274 Ill.Dec. 582, 791 N.E.2d 674 (4th Dist., 2003), and In re: Marriage of Truhlar, 404 Ill.App.3d 176, 343 Ill.Dec. 971, 935 N.E.2d 1199 (2d Dist., 2010). That means that all of the child support rules (like, no retroactive relief, missed payments become judgments automatically, 9% on unpaid payments from the date they were due, and . . . emancipation) apply to payments for college expenses. Fortunately Illinois’ college expense law DOES have an upper age limit: ". . . all educational expenses which are the subject of a petition brought pusuant to this Section shall be incurred no later than the student's 23rd birthday, except for good cause shown, but in no event later than the child's 25th birthday. 750 ILCS 5/513(a). Gone are the days of Sen. John “Bluto” Blutarski‘s lament: “Seven years of college down the drain . . . might as well join the Peace Corps.”

So, what happens to child support — or college expenses — when a child enlists in the military, quits high school and gets a job, marries, or whatever? What happens to college expenses if, instead of going to college, a kid takes a “gap year” (or two, or three) and gets a decent job and lives on his/her own and is financially self-sufficient? The answers lie in the cases below. I’ve laid the cases out chronologically to give you a feel for the development of the law on the topic:

1917: Emancipation by Marriage: Mitts v. Ham: The Grand-Daddy of Illinois emancipation cases isPeople ex rel. Mitts. v. Ham, 206 Ill. App. 543 (3d Dist., 1917). Truman Mitts, a 43-year-old widower with three children living in Springfield, Illinois, seduced and took with him to St. Louis, Missouri, 15-year-old Ethel Ham — a school-friend of his own children. They couldn’t marry in Illinois, nor in Missouri for that matter, but signature and witness requirements made it easier to lie about Ethel’s age to get the license in Missouri. Once married, they returned to Illinois . . . where Ethel’s parents were waiting for them. Truman Mitts was arrested and charged with abduction and rape, and Ethel was taken to her parent’s home where she pined away for Truman (really — she wanted to be with her husband and objected to her home-detention but, being a minor, was subject to her father’s dictates). Six months later, still under her father’s protection, Ethel gave birth to a child (the baby died in childbirth).

Now, notice that the caption of this case is Mitts v. Ham — this isn’t the criminal case where Truman was to be tried for rape. In this case Truman was suing Ethel’s parents for a writ of habeus corpus to force them to release their minor daughter so she could be with her husband. He (and she) won. The appellate court went through a lengthy analysis of what the law said in Illinois and Missouri about what happened when one lied to get a marriage license and all the punishments available for those who violated the law . . . but ultimately concluded that, really, all that law stuff about marriage was just “directory and not prohibitive . . . . The marriage of an infant effects an emancipation of the minor from the custody of the parent.” A writ of habeus corpus issued and Mr. Ham had to release Ethel to the waiting arms of her loving husband.

There you have it: according to the oldest emancipation case in Illinois, marriage equals emancipation.

1920 Emancipation by Military Enlistment: Iroquois Iron Co.: The most cited Illinois case on emancipation is Iroquois Iron Co. v. Industrial Commission, 294 Ill 106, 128 N.E. 289 (1920). In Iroquois, Peter and Mary Olesen divorced in 1914 in Chicago when their son, Reginald, was 15. Mary was awarded custody of Reginald and Peter was to pay her $5 a week for child support. Reginald, however, soon went to live with Peter (they rented a room together in Chicago) and got a job (at Marshall Field’s). Reginald kept his wages and provided for himself (under the law, Peter had the right to claim his minor son’s income). Then, in 1915 Reginald enlisted in the Marines. Reginald rose in rank rapidly. His USMC salary doubled within two years and Uncle Sam provided for his meals, clothing, and shelter. In short, Reginald hadn’t been living with Mary, and hadn’t been dependent on his father, since the divorce.

Then, in 1918 — when Reginald was 20 — his father died in an industrial accident while working at the Iroquois Iron Co. Reginald’s older brother served as executor of the estate and tried to get some money for the family on a workman’s comp. claim. His only problem was he needed a beneficiary — someone that the father was responsible for. He couldn’t use the mother as a “widow” (he tried but it didn’t work) because the couple divorced. So, he put down Reginald’s name and hoped for the best. Remember, there was no age limit on child support at the time.

The legal question was “whether [the] deceased was ‘under legal obligation to support’ his son Reginald at the time of the injury which resulted in his death?” Reginald did his best to seem dependent on his Dad: he offered a lot of testimony about how rough things were, financially, in the Marines and how he was always having to contact Dad to hit him up for money. The Illinois Supreme Court said Reginald was out of luck, however, and that he couldn’t get any money from the employer. Reginald, they said, had been his own man for some time. For the Supreme Court, once Reginald signed his enlistment papers the bright line had been crossed — the Father’s obligation to support the son ended, not with the son’s 18th birthday, but with the stroke of that pen. The court said:

“When a child who is physically and mentally able to take care of himself, voluntarily abandons the parental roof and leaves its protection and influence, and goes out into the world to fight the battle of life on his own account, the parent is no longer under legal obligation to support him.

. . . .

“When a minor enlists in the military service of this country, he ceases to be a part of his father’s family, and puts himself under the control of the government, and is consequently emancipated so long as this service continues.”

Iroquois Iron Co. v. Industrial Commission, 294 Ill 106, 109, 128 N.E. 289, 290 (1920).

There you have it: according to the old-as-dust Iroquois case, military enlistment equals emancipation. That “fights-the-battle-of-life” language became a bulwark of self-emancipation analysis for future cases, too.

1951: Fighting the Battle of life — not so much. Shuff v. Fulte: In 1951, the Illinois Appellate Court relied on the Iroquis language to say that sometimes when a child “fight[s] the battle of life,” an emancipation is not worked and the parent remains obligated to support him. In Shuff v. Fulte, 344 Ill.App. 157, 100 N.E.2d 502 (1951) the amount of the support order was so woefully insufficient that the teenage children had to take jobs in the interest of self-preservation (as opposed to emancipation). The court said:

“In the present case neither of the children voluntarily abandoned the parental home, neither of them chose to fight the battle of life of his own accord, but they were obliged to do so to help their mother, while their father, although ordered to do so, failed, neglected or refused to contribute a very small amount to help maintain them. These actions on the part of the children did not amount to self-emancipation to relieve the father of the obligation of complying with the decree of court ordering him to pay a small amount toward their maintenance and support. “

Shuff v. Fulte, 344 Ill.App. 157, 100 N.E.2d 502 (3rd Dist., 1951).

Just as an aside, it should be noted that way back when, in the days of Shuff, and right up until 1977, it was common practice to enter an order for child support in a particular amount and leave it unchanged as the kids emancipated. In other words, in the early days after the divorce, the custodial parent would be hard pressed to care for all the children with a paltry order but, as each child emancipated and moved out, there would be fewer mouths to feed, the support amount would not change and the burden would ease. It was a terribly unfair system but, that’s what they did, most of the time.

1962: 18th Birthday Not De Facto Termination: Snip v. Snip This is more a case about maintenance (alimony) and retroactive relief than it is about emancipation, but I include as an example of how the law used to handle emancipation and termination of child support. William and Hazel Snip divorced in 1933, Hazel was awarded custody of their two daughters and William was ordered to pay $15 per week for both, alimony and child support. The girls turned 18 (one in 1938 and the other in 1947). William made some payments and missed some payments and stopped making payments altogether in 1954.

In 1961, Hazel took him back to court to collect the amounts unpaid. William argued that, among other things, the $15 per week should have been looked at as $5-per-head-per-week and, therefore, should have automatically reduced by $5 as each child emancipated decades earlier. The Snip court agreed, holding:

“The pleadings disclose no special circumstances which would extend defendant’s obligation to support his children into their majority. (Ill Rev Stats, c 23, § 112.) We conclude, therefore, that defendant’s obligation to support his daughters, Laverne and Carol, terminated on November 15, 1938, and June 15, 1947, respectively, the dates of their eighteenth birthdays.”

Snip v. Snip, 35 Ill. App.2d 427, 183 N.E.2d 175 (1st Dist., 1962).

Snip shows that emancipation could occur in any number of ways (marriage, military service, “fighting the battle of life,” etc.) and the child’s 18th birthday acted as a backstop — the be-all-end-all-emancipation event. This idea worked well in cases with an only child. For families with more than one child, however, there was still an unanswered question: how should support be handled when one child emancipates and others still are covered by the support order? That is, on a child’s 18th birthday, could support be reduced automatically, unilaterally, or should the obligor (the parent paying support) have to go to court to ask for and confirm the reduction? The Snip court suggested that unilateral, automatic termination would be okay. It didn’t answer the question conclusively, however, because to them, it didn’t matter — they sent the case back to the trial level for additional fact finding (about an alleged agreement from years before that would have undermined Hazel’s claim). I don’t know what happened back at the trial level, but it resolved the matter as neither William nor Hazel argued it as part of a “Snip II.”

No Unilateral, Automatic Termination or Reduction . . . EVER: A bunch of cases came down quickly after Snip to say that when it comes to child support, nothing is automatic. If an obligor wants to terminate support because he/she feels a child has emancipated, even if by attaining the age of majority, the obligor had to go to court to terminate support. For example, there’s this little gem: “As the courts have indicated, where a parent, who is required to pay child support, feels he is required to pay more than he should pay due to emancipation of one of the children so supported, he may reduce the amount only upon an order of court.” Voss v. Voss, 23 Ill.App.3d 312, 319 N.E.2d 72 (3d Dist., 1974). And in Storm v. Storm, 9 Ill.App.3d 1071, 293 N.E.2d 633 (1st. Dist., 1973), the same court that wrote the Snip opinion held that child support payments cannot be reduced pro rata automatically as each child reached majority. That’s a direct contradiction of the Snip language. In another case involving emancipation by reaching age of majority the court said: “It was up to the defendant to seek modification before the right to child support became vested.” Doty v. Doty, 45 Ill.App.3d 213, 359 N.E.2d 784 (5th Dist., 1977).

1977: IMDMA: Prior to 1 October 1977, Illinois had no child support guidelines. Support was determined in each case by considering several factors: 1) the financial resources of the child; 2) the financial resources and needs of the custodial parent; 3) the standard of living the child would have enjoyed had the marriage not been dissolved; 4) the physical and emotional condition of the child, and his educational needs; and 5) the financial resources and needs of the non-custodial parent or parent. Similarly, the emancipation / termination issue was determined on a case-by-case basis.

Illinois’ legislature passed huge modifications to the child support laws in 1977. It was at this time that Illinois first adopted the statutory guideline (percentages) approach to child support. We still have those old factors (with just a few modifications) in the law, but now instead of being used to determine the amount of support, they’re used to determine whether a deviation from the guidelines is warranted. The new law, however, still failed to include any language defining the age of majority and only said that child support “terminated by emancipation of the child.” (Ill. Rev. Stat., ch. 40, par. 510(c) (1977)).

1980: No Unilateral, Automatic Termination or Reduction: Finley v. Finley: This is a case from the Illinois Supreme Court affirming the rule laid down in Voss, Storm, and Doty (above) after the 1977 law. Plus, it’s just such an awesome fact pattern — Bill and Ethel Finley must have conspired to produce this case for this article . . . it’s like a law school exam question. Bill and Ethel divorced in 1965 when their kids were 16, 12, 7, and 4. The kids stayed with Ethel and Bill was ordered to pay $30 per week for support. Over the years, among the three older children: one child enlisted in the military, one married, and one turned 18. At each of these emancipation milestones, Bill unilaterally reduced his support payment pro rata — by 25%. It finally got to the point in 1975 that Bill was paying only $7.50 per week. Ethel, one month after the new law passed, finally talked with a lawyer who told her she had a case. Bill fought it all the way to the Illinois Supreme Court. The Supremes handed him a loss, saying:

. . . the unilateral reduction of child-support payments constitutes a modification of the support order. The modification of such payments is solely a judicial function which is to be administered only by the court and in its discretion. (See, Jozwick v. Jozwick, 72 Ill.App.3d 17, 20 (1st. Dist., 1979).) It is the function of the court to determine whether there should be a pro rata reduction in lump-sum periodic support payments when one of several children is emancipated, or whether other equitable considerations require that the reduction be a lower amount, or in fact whether there should be any reduction in the payments. Automatic reduction in support payments in a case such as the one before us constitutes an infringement upon the discretionary powers of the court to modify an award. (citation omitted) The responsible parent should petition the court for a judicial determination of the amount the support payments should be reduced due to changed circumstances. (citation omitted) In view of the foregoing, we hold that the unilateral pro rata reduction of lump-sum periodic support payments for the benefit of more than one child upon the emancipation of a child is impermissible under the new act, as well as under the common law.

Finley v. Finley, 81 Ill.2d 317, 329, 410 N.E.2d 12 (1980).

1981: Graduating High School NOT Emancipation: IRMO Smith This is a lot like Finley, but it nicely lays out the court’s concerns when considering a termination of support prior to a child’s 18th birthday. Smith also clearly focuses on some sloppy drafting in the 1977 IMDMA. The law said (at section 510(c)) “Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child.” In other words, the legislature intended that parents could agree, and in appropriate cases judges could order, that support would continue beyond a child’s 18th birthday. This is clear from the legislative record, the comments on the legislation, and the testimony for and debate of the act. Some kids, and some circumstances, require child support to last longer than the 18th birthday . . . and this law was trying to make allowance for those situations.

The way the law was written, however, allowed an interpretation that permitted termination of support prior to a child’s 18th birthday (go back up, and re-read it) — exactly the opposite of the law’s intent — so long as the parent’s agreed to it or the judge ordered it in the original divorce judgment. That’s what happened in Smith.

The parties had four kids. The divorce case went to trial. The trial judge ordered in the divorce judgment that support would be reduced pro rata as each child emancipated (contrary to the Finley rule) and in the Judgment, the court defined emancipation as being the child’s 18th birthday “. . .or high school graduation, whichever first occurs.” (emphasis added).

The Second District, reversing the trial court’s ruling, held that emancipation occurred at the 18th birthday and not high school graduation. In re: Marriage of Smith, 100 Ill.App.3d 1126, 427 N.E.2d 1262 (2d Dist., 1981). The appellate court added:

“. . . given the parents’ legal duty to support their children, it would appear to be sound public policy to require extraordinary circumstances before allowing support to terminate before emancipation. In effect, the trial court determined that children are emancipated upon graduation from high school without reference to the child’s then need of support.”

In re: Marriage of Smith, 100 Ill.App.3d 1126, 427 N.E.2d 1262 (2d Dist., 1981).

1983: Quitting High School NOT Emancipation -- In Re: Marriage of Donahoe: Donahoe is sometimes pointed to as the case defining “de facto emancipation;” but, in fact, it stands for the exact opposite. Marie and Richard Donahoe divorced in 1977 when their daughter, Margaret, was 12 years old. In the 1980 – 81 school year Margaret made it to school only a day or two in the fall before contracting mono. At that point, Margaret was 16, not going to school, and living with her Mom. Richard stopped paying support. By the time her physician cleared her to go back to school, she had missed so much that she gave up on the fall semester. She aborted her spring semester as well and decided she’d just take the GED once she turned 18 (in October, 1982). She registered for the 1981-82 school year (she was then 17) but missed pretty much the entire fall semester as she recuperated from injuries sustained in two car accidents. Around Christmas, 1981, she got a small part-time job (making $40 / week) at the local grocery store and regularly passed a little money to her Mom for food. The trial court said Richard was justified in unilaterally terminating support, but set the emancipation date as November, 1980 (when she was 16 and her Dr. cleared Margaret to go back to school but she declined), not August (when she first started missing school due to illness). The Appellate court reversed, holding “[H]er act of quitting school against her father’s wishes is an insufficient reason for refusal to comply with the support provisions of a court decree. (citation omitted) From the evidence found in this record, we conclude Margaret was not emancipated prior to her reaching age 18,” In re Marriage of Donahoe, 114 Ill.App.3d 470, 70 Ill.Dec. 152, 448 N.E.2d 1030 (2d Dist., 1983).

Taken together, Smith and Donahoe say that high school graduation (or quitting) has nothing to do with emancipation. Period.

1992: After Majority, Burden Shifts to Preserve College Contribution after Emancipation: In re: Marriage of Walters: Barbara and James Walters had three children prior to their divorce in October, 1975. In their Marital Settlement Agreement, James agreed to pay support and cover health insurance and uncovered medical expenses and also to pay for their college educations. Their two daughters each married at age 20 and while in college. One daughter lived with her husband. Everyone agreed that college contributions for that daughter ended on her wedding day. The appellate court said “. . . we agree with the trial court that respondent’s obligation to provide maintenance and to pay for college expenses of his daughters terminated if they became emancipated through marriage.” In re: Marriage of Walters, 604 N.E.2d 432, 238 Ill.App3d 1086, 178 Ill.Dec. 176 (2d Dist., 1992). The second daughter, however, after her marriage never lived with her husband, continued to live with Mom when not at school and, eventually, had her wedding annulled. On these facts, the appellate court held: “. . . we determine that Suzanne’s marriage was not an emancipating event such that her father’s obligation to provide for her education and maintenance terminated.” Id., 238 Ill.App3d 1086, 604 N.E.2d 432, 178 Ill.Dec. 176 (2d Dist., 1992).

So, as of 1992, child support ended at age 18, but the parties could agree to, or the court could order, an extension in appropriate circumstances (like, if an 18 year old child was still in high school). To terminate support prior to the child’s 18th birthday required special circumstances and a court order with specific findings. From the way the Second District ruled in Walters, however, it seems that once a child reaches majority and college contributions kick in, one of the common law emancipation events (like marriage) can terminate the obligation and the burden shifts to the obligee parent / child to argue for an extension of the contributions under special circumstances.

1996: De Facto Emancipation Defined -- Proctor Hospital: Proctor is the non-child support case that caused the confusion for the author of the article mentioned at the top of this post. Wayne and Bobette Taylor divorced in 1991 when their daughter, Erin, was 14. Three years later Erin was getting ready to leave for Alabama to be with her fiance. Wayne went to family court to terminate child support on the theory that his daughter was marrying off and, although not yet 18 and not yet married, she was as good as gone. Bobette didn’t contest Wayne’s motion and the family court– without making a formal finding of emancipation — granted his request. Before Erin’s departure, Bobette took her to the hospital for treatment and signed an admission form agreeing to be responsible for the bill.

The hospital, of course, had to sue to collect its bill. It named Bobette as a defendant based on the admission form and sued Wayne under Illinois’ Family Expense Statute. Wayne countered that the Family Court’s prior ruling meant Erin was emancipated and he, therefore, was shielded from liability. The Proctor court ignored the Family Court ruling and said maybe Erin was emancipated . . . and maybe not. It went on to cite Donahoe and publish these lamentable words:

“In Illinois, a minor may become emancipated in three different ways. First, the Emancipation of Mature Minors Act provides a statutory emancipation procedure. 750 ILCS 30/1 et. seq. (West 1994). Second, de facto emancipation occurs when a minor reaches the age of majority, marries, or enters the armed forces. (citing Donahoe, above). Third, self-emancipation occurs when a child who is able to support herself voluntarily abandons her parents’ home. (citing Walters, above).”

Proctor Hospital v. Taylor, 279 Ill.App.3d 624, 665 N.E.2d 872 (3d Dist, 1996).

Ugggghhhhhh!! There it is: “de facto emancipation.” Neither Donahoe nor Walters, however, used the phrase “de facto emancipation.” The Proctor court minted the phrase and definition and pointed the finger at Donahoe. The lesson is this: in the context of child support, Proctor is meaningless.

2001: Attaining a GED = High School Graduation and Emancipates Child if 18+ -- IRMO Hahn: Mr. and Mrs. Hahn divorced in September, 1996 — just when their son was starting what would have been his Junior year in high school. This case was decided in 2001 — two years before the “still-in-high-school-but-under-the-age-of-19″ amendment to the law." Back in those days, support stopped at age 18 unless the parties agreed to, or the court ordered, an extension. The Hahn court was looking at one of these MSAs, which addressed emancipation in two separate clauses. It read:

“Maintenance: [Respondent] shall pay to [petitioner] Unallocated Family Support of * * * $600.00 * * * each month * * *. This responsibility shall continue until [Matthew] reaches age * * * 18 * * * or graduates from high school, whichever occurs last.”

and

“Child Support and Custody: [Respondent] shall pay to [petitioner] Unallocated Family Support of * * * $600.00 * * * each month * * *. This responsibility shall continue until [Matthew] reaches age * * * 21 * * * or graduates from high school, whichever occurs first.”

In high school, their son failed most of his classes, earned a 1.0 GPA and accumulated only 5 credits toward graduation. Still, Mr. Hahn described his son as being “very intelligent.” The boy dropped out of school in May, 1997 (nine months after the divorce) while he was still 17 and celebrated his 18th birthday out-of-school.

Now, let me ask you to walk a mile in Mr. Hahn’s shoes. Given the facts in May, 1997, the agreement says you have to pay child support until your son turns 21, or graduates. It also says you have to pay maintenance . . . until he graduates. The boy, however, dropped out of school altogether — this kid might never graduate. The MSA conceivably could transmogrify into a kind of eternal annuity.

Dad probably would have taken action before too long, but he had the good fortune to see his son, still in his 18th year, attain a G.E.D. (got it on the first try, too — Dad was right: this kid was no dummy; although he failed nearly every class the high school threw at him over the course of three years, he aced his GED. Go figure.). It was at that point that Dad sought to terminate support and maintenance under the MSA’s “emancipation event” language.Mom objected. She had been receiving $600 / month and the reality was that the son was nowhere near being financially self-sufficient.

The appellate court agreed with Dad and said “‘graduates from high school’ includes receiving a GED.” In re: Marriage of Hahn, 754 N.E.2d 461, 324 Ill.App.3d 44, 257 Ill.Dec. 803 (2d Dist., 2001).

I think this decision is slightly off. It’s important to note that Mr. Hahn testified that he didn’t know if his son was eligible to attend college, even with the GED. Many colleges require applicants to meet certain course requirements in addition to holding a GED. High school graduates meet all course requirements making them eligible automatically to attend college — not so with GEDs. These days college opens nearly all doors to a young person’s future. If unfulfilled course requirements prevent a young person from attending college, even with a GED, then holding the GED is next to meaningless. I think the better rule is not “‘graduates from high school’ includes receiving a GED,” but “‘graduates from high school’ means eligible to attend college.”

2010: Incarceration Does Not Work Emancipation and “Unemancipation” -- Baumgartner: Note: "Baumgartner" is comprised of four cases (Baumgartner I, II, III, and IV). There was an initial post-judgment claim that went up on appeal (Baumgartner I) that doesn't have anything to do with this article. A second fight erupted over college expenses for the child (Baumgartner II). That result was appealed to the Illinois Supreme Court (Baumgartner III). Then, after things were addressed after the Supreme Court ruling, there was another fight (Baumgartner IV), which also doesn't have anything to do with this article. I'm only talking about Baumgartner II and Baumgartner III.

Susan and Craig Baumgartner divorced in 1998 when their son, Max, was ten years old. Twelve years later, Susan and Craig disagreed about Max’s academic potential, but the record reflected that when he was 20, he plead guilty to two felonies and had been sentenced to three years in prison. Craig went to court to modify the Judgment to relieve him of any obligation to contribute to Max’s college costs. He argued that Max had graduated high school, was 20 years old, wasn’t a great student in high school or at community college, and . . . was going to be serving his sentence for the next several months and would be on parole for a year, thereafter. Craig won at the trial level.

“So what?” said Susan. Her position was that Max was a child of the marriage, needed a college education, and his grades really weren’t that bad. Once he was released, she opined, Max would resume his studies at the local community college and would be in need of financial contributions from Craig. The trial judge agreed with Craig, terminated his obligation to contribute to Max’s educational expenses . . . and Susan appealed.

The First District Appellate Court agreed with Susan. “We find no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event such as marriage or military service. “‘[T]he placement of a minor child with the Department of Corrections does not relieve the parents of their duty of support’ . . . . In re: Marriage of Baumgartner (II), 912 N.E.2d 783 (1st Dist., 2009) (citing, In re Marriage of Van Winkle, 107 Ill.App.3d 73, 62 Ill.Dec. 831, 437 N.E.2d 358 (1982) (superceded by statute).

Craig appealed to the Illinois Supreme Court . . . where he lost, again. The Supreme Court’s opinion is a tour de force analysis of the law of emancipation in Illinois. The Court laid out a nice summary of the law of child support and emancipation:

At common law, there are several situations in which a minor may be found to be self-emancipated. ‘Under those circumstances, the parent or parents are relieved of their duty to support their child because the child has entered into a new relationship, status, or position, which is inconsistent with control and support of the child by the parent. “

. . . .

It is widely recognized that the emancipation of a minor cannot be presumed. Whether a minor is emancipated, i.e., has moved beyond the care, custody, and control of a parent, depends upon the relevant facts and circumstances of each particular case. We emphasize that “the rules of law governing emancipation do not point to specific facts or a bright-line standard. Rather, the unique facts and circumstances of each case must be evaluated.” Such evidence may be circumstantial.

Further, emancipation is not necessarily a continuing status. A minor may become unemancipated if there has been a sufficient change in circumstances. The burden of proving emancipation is on the party asserting it.

. . . .

[I]in the context of child support, self-emancipation does not ultimately depend on the statusof the minor, e.g., whether the minor is married, a member of the armed forces, or even whether the minor is a felon or incarcerated. Rather, in determining whether a minor is self-emancipated, a court must determine whether the minor has actually moved beyond the care, custody, and control of a parent such that the minor no longer needs to be supported. The answer to this question depends on the relevant facts and circumstances of each particular case. Thus, courts should consider factors including, but not limited to, whether the minor has voluntarily left the protection and influence of the parental home, or whether the minor has otherwise moved beyond the care and control of the custodial parent; whether the minor has assumed responsibility for his or her own care, or whether the minor continues to need support; whether the minor, if self-emancipated, has become dependent on his or her parents again, thereby reverting to being unemancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age. “This analysis has the advantage of focusing the courts’ attention on relevant circumstances and of avoiding broad generalizations which later have either to be ignored or distinguished away by disingenuous reasoning.”

In re Marriage of Baumgartner (III), 237 Ill. 2d 468, 930 N.E.2d 1024, 341 Ill.Dec. 510 (Ill., 2010).

Conclusion: There’s the history of emancipation in Illinois . . . and it’s all wrapped up with a nice little bow by Baumgartner. If you skipped all the way down here from the top, forget anything you’ve heard about “de facto emancipation” — there’s no such thing (not in the context of child support, anyway) — just read the last paragraph, above, and you’ll have everything you need to know.

For practitioners, there’s a lesson in all this to be careful when including “emancipation event” language in MSAs. According to IRMO Baumgartner, we cannot define when emancipation occurs prior to a child’s majority — each case must be decided on it’s own merits — and even after attaining majority, a child’s right to educational assistance from the parents must be determined on a case-by-case basis.