Indiana law regarding emancipation and college expenses (also called post-secondary expenses) has changed dramatically in the last couple years. The recent case of Littke v. Littke, summarizes and reviews this law and how it applies.
Littke involves the situation where a divorced couple with children’s divorce decree did not contain a provision regarding post-secondary educational expenses. When the parties’ daughter turned nineteen, in 2012, mother “filed a motion to emancipate and terminate child support.” While acknowledging that there was “no existing order for postsecondary educational expenses,” Father nevertheless requested the trial court order mother to contribute to their child’s post-secondary education expenses.
After the parents agreed that the child was emancipated, and that Mother did not have to pay further child support, Mother filed a motion to dismiss the father’s petition for postsecondary education expenses, arguing that “[a] parent may assert emancipation of a child as a defense to a petition seeking an order for educational needs where no order providing for educational needs was entered prior to emancipation.” Mother also contended that Father’s petition was “untimely” because Father filed the petition after the child was emancipated. The trial court granted the Mother’s motion to dismiss, and the Father subsequently appealed.
In discussing the issue, the Court of Appeals examined Ind. Code § 31-16-6-6. First, the court noted that the Indiana Legislature amended the statute in 2012 , “chang[ing] the presumptive age for termination of child support from twenty-one to nineteen[.]” The court also observed that the Indiana Legislature again modified the statute in 2013, “with an emergency retroactive effective date of July 1, 2012[,] and added subjections (c) through (e) that address a parent's or child's ability and the timing to file a petition for educational needs following the 2012 Amendment.” Specifically, the court acknowledged that Ind. Code § 31-16-6-6(a)(1) stated,
(a) The duty to support a child under this chapter, which does not include support for educational needs, ceases when the child becomes nineteen (19) years of age unless any of the following conditions occurs:
(1) The child is emancipated before becoming nineteen (19) years of age. In this case the child support, except for the educational needs outlined in section 2(a)(1) of this chapter, terminates at the time of emancipation, although an order for educational needs may continue in effect until further order of the court.
(Emphasis added by court). The court further noted that Ind. Code § 31-16-6-6(c), which was added by the 2013 amendment, provides that “[i]f a court has established a duty to support a child in a court order issued before July 1, 2012, the: (1) parent or guardian of the child; or (2) child; may file a petition for educational needs until the child becomes twenty-one (21) years of age.”
Applying these statutory changes to the issue at hand, the court observed that the trial court had entered its judgment granting the Mother’s motion to dismiss in 2012, before the Indiana Legislature amended Ind. Code § 31-16-6-6 to add subsection (c). Importantly, the court observed that, “subsection (c) of that statute clearly allows a parent, who had a child support order issued before July 1, 2012, to file a petition for educational needs until the child becomes twenty-one years old,” and because the statute has a retroactive effective date of July 2012, subsection (c) was applicable to this case. Indeed, the record “reaveal[ed] that there was a child support order issued before July 1, 2012 and that [the child] was less than twenty-one years old at the time Father filed the petition for postsecondary educational expenses.” Therefore, under Ind. Code § 31-16-6-6, the Father’s postsecondary petition was not untimely.
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