Here’s a fact pattern that occurs with some frequency in parentage court.  To make this blog post more easily readable, we’ll assume that the mother is seeking child support from the father.  Of course, that’s not always the case, but it is certainly the more common scenario.

  • An unmarried couple has a child together, then lives in separate residences.
  • At the time of separation, neither parent goes to court to set up any formal parenting time arrangement or child support obligation.
  • The child primarily resides with the mother, and sees the father on an as-agreed basis.
  • The father provides some financial support to the mother, and occasionally buys things for the child.
  • Years go by, often with little to no conflict whatsoever.
  • The mother, either on her own or through the State, files for child support.
  • As part of the child support case, the mother requests child support going all the way back to the date of the child’s birth.

Is the father obligated to pay child support all the way back from the time that the child was born? What about the contributions and support he has already paid in the past, which were not required by any court order? Do they count for anything?

 

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The “traditional” American family is changing, and assisted reproduction techniques are advancing.  One option for an infertile couple is to seek the assistance of an egg donor.  Egg donation is the process by which a woman donates her eggs to a recipient couple who wishes to have a child.   The donor’s eggs are then fertilized through the in vitro fertilization process, and implanted into the recipient mother.

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Currently, no law exists in Illinois that governs egg donation. However, egg donors and recipients commonly hire attorneys to represent each of them in drafting an Egg Donor Contract or Egg Donor Agreement for several reasons.  One important reason to hire an attorney is that Illinois law imposes an obligation to pay child support upon the biological parents of a child.  Since an egg donor is the biological mother of the resulting child, a written agreement is essential in order to ensure that this is a one-time transaction to donate eggs, and not a lifelong commitment.   Many doctors actually require a written agreement before beginning the egg donation process. Egg donors may choose to remain anonymous as well.

 

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Section 7(b) of the Illinois Uniform Premarital Agreement Act states that if a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the prenuptial agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the prenuptial agreement, a court, notwithstanding the terms of the prenuptial agreement, may require the other party to provide support to the extent necessary to avoid such hardship.  The following is a case study involving the application of these principles.

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In the case of In re the Marriage of Barnes, the Appellate Court for the Fourth District analyzed what constitutes undue hardship and unforeseen circumstances.  In that case, Edward was the sole shareholder and chief executive officer of a company.  He earned in excess of $250,000 per year.  His wife, Sandra, quit her office job where she had been earning $19,000 per year in order to spend more time with Edward.  Before their marriage, they signed a prenuptial agreement.

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Whether it be maintenance to or from your current or former spouse, or support for your child(ren), your income is relevant in divorce and parentage proceedings. The fact that you are the person obligated to pay or the person who receives money from another does not change the need for your income to be defined before an order for support is entered.

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“But what is my income? I am on social security benefits, or I run a business, or my income is constantly in flux. Surely, you cannot expect me to truly define my income. I’m special,” you say. Thankfully for you, the good and wise people of the Illinois legislature have defined what income is, and also what it isn’t, and they’ve done so in a way that isn’t confusing or contradictory at all.  Rather than use a single definition for all family law purposes, they instead have defined income in three separate-yet-related statutes: the Uniform Interstate Family Support Act (“UIFSA”); the Income Withholding for Support Act, and the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).

 

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Last year, the Illinois legislature introduced Illinois House Bill 4113, which was the most politically controversial family law bill in a generation. It proposed a statutory mandate requiring a 50/50 shared parenting time schedule in divorce and parentage cases, except under limited circumstances.  The legislation was supported by father’s rights groups, among others, who believe that Illinois law contains an unwritten bias in favor of the mother when it comes to parenting time decisions.  They believe that the way to effectively address this bias is with a bright line rule.

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At the same time, the legislation was vigorously opposed by a wide variety of individuals and organizations which, according to the Chicago Tribune, included the following:

  • The Illinois State Bar Association
  • The Chicago Bar Association
  • The Kane County Bar Association
  • The Du Page County Bar Association
  • The Lake County Bar Association
  • Illinois Chapter of the American Academy of Matrimonial Lawyers
  • Archdiocese of Chicago Domestic Violence Outreach
  • Jewish Child & Family Service
  • The Illinois Coalition Against Domestic Violence

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It seems like only yesterday that Illinois amended the maintenance statute to put new guidelines in place regarding maintenance, formerly known as alimony.  In fact, there were a couple of amendments, one in 2014 and another in 2017, which changed the way the courts calculated the amount and duration which one spouse would have to pay to the other during and after the divorce proceedings.  Historically, maintenance paid was tax deductible to the payor and deemed taxable income to the payee.

 

Then, in 2017, Congress passed the Tax Cuts and Jobs Act, which altered the tax treatment of maintenance payments ordered on or after January 1, 2019.  Specifically, under federal law, maintenance would no longer be tax deductible to the payor, and would no longer be treated as taxable income to the payee.  This change in federal law made Illinois’ relatively new maintenance guidelines obsolete.

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Let’s examine the hypothetical case of Karl.  Karl is going through a divorce from his second wife, with whom he has two minor children. Karl also has two children that he is legally obligated to support from his first marriage, pursuant to a court order. Karl wonders his obligations to pay support to one wife will be taken into account when calculating how much he has to pay in child support to the other. The answer in Illinois is yes. On July 1, 2017, changes to the Illinois Marriage and Dissolution of Marriage Act have added the multi-family adjustment to Section 505. The language of Section 505 regarding the multi-family adjustment provides as follows:

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The Illinois Department of Children and Family Services (DCFS) is charged with investigating allegations of child abuse and neglect. DCFS workers are notified of alleged child abuse and neglect and depending on the circumstances, investigate the allegations.

 

DCFS has promulgated administrative rules for conducting investigations and has devised a list of allegations comprised of behavior that constitutes abuse or neglect. If DCFS decides that there is not enough evidence to support the allegation, the allegation is deemed “unfounded.” If DCFS finds that the allegation is credible, DCFS makes an “indicated finding” against the perpetrator.

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When a child is born, the biological mother’s name is listed on the child’s birth certificate.  In most situations if the mother is married, her spouse will be listed as the child’s father.  However, that is clearly not necessarily always the case. And sometimes, for a variety of reasons, a child’s birth certificate needs to be corrected.

 

Today, a large percentage of children born today are not born to married parents. In fact, according to the Center for Disease Control and Prevention – National Center for Health Statistics, the percentage of all births to unmarried women in 2015 was 40.3%.

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In society today, how we define what makes up a family is extremely diverse. Many children today are born and raised in unmarried or single-parent households. Often, extended family members, including grandparents, aunts, uncles, and adult siblings, raise and even adopt children. Courts previously made rulings and upheld laws in family cases based on what a “traditional” family looked like and to protect children who grew up in families outside that perceived norm.

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However, in 2000, the U.S. Supreme Court acknowledged that what was once considered a “traditional” family was outdated and inaccurate. In the 2000 case of Troxel v. Granville, Justice O’Connor noted, “The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.”

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