Child Support

Modifying Child Support? When a Substantial Change in Circumstances Isn’t

Published on: November 18, 2019 | Kollias, P.C.

Section 510 of the Illinois Marriage and Dissolution of Marriage Act allows a court to modify a child support obligation upon a substantial change in circumstances. Prior to the 2017 amendments to the Act, child support was based solely on the payor’s income. After the amendments, child support is calculated based upon both parties’ incomes.

What happens when a parent with an obligation to pay child support attempts to modify a pre-2017 order based upon the recipient parent’s new job, when the recipient parent was not previously earning income? According to the Illinois Appellate Court, the answer depends not on the existence of their new-found income, but whether that new income was contemplated at the time of entry of the judgment.

Retroactive Child Support Under Illinois Law

Published on: August 5, 2019 | Kollias, P.C.

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?

Equal Parenting Time: House Bill 4113 Returns as Illinois House Bill 185

Published on: February 18, 2019 | Kollias, P.C.

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.

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

Multi-Family Child Support Adjustments

Published on: January 21, 2019 | Kollias, P.C.

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:

Is Past-Due Child Support Collectible at Any Time? Or Is There a Deadline?

Published on: April 30, 2018 | Kollias, P.C.

In Illinois, there are very specific laws related to enforcing and collecting money judgments. There are even more specific laws as well as unsettled caselaw related to if and how those collection laws apply to child support in domestic relations cases. Are there time limits to within which a parent must enforce and collect on past-due child support or child support judgments? Do any special rules apply? The answer is, as it often is, “it depends.”

Imagine the following scenario: A husband and wife were divorced on January 1, 1970. The divorce decree entered on that date provided that the husband would pay the sum of $100.00 for child support for the parties’ minor child, who was three years old at the time the divorce was finalized. The Husband paid no child support whatsoever. The child emancipated in 1985 and wife never took the husband back to court for payment of child support. In 2017, the wife found out that the previously unemployed husband had won $500,000 playing the Illinois lottery, and so she decided to collect on the past-due child support that was due and owing from 1970 through 1985. However, more than 32 years have elapsed since the child emancipated, and more than 37 years have elapsed since the first unpaid child support came due. Is that too long?

Can You File Bankruptcy to Discharge Your Family Support Obligations?

Published on: October 31, 2016 | Kollias, P.C.

In this current economy, many people find themselves underwater in their mortgage payments, credit card debts, car loans, student loans, and the like. In certain situations, filing for bankruptcy may seem like a “get out of jail free” card to rid yourself of all the suffocating debt that you’ve racked up over the years. But before you call a bankruptcy attorney, take a step back and consider: are all debts dischargeable? What does the law have to say about support owed to a former spouse or children?

While the United States Bankruptcy Code is expansive and provides for discharge of many debts under several sections, there are certain debts which the legislature has specifically noted are NOT dischargeable, even in bankruptcy.

Illinois Child Support Statute Changes

Published on: October 17, 2016 | Kollias, P.C.

Changes to Illinois’ Child Support statute are imminent. On June 27, 2016, House Bill 3982 was sent to Governor Rauner for his approval, and on August 12, he signed it. It is currently scheduled to become effective July 1, 2017. Among the changes in HB 3982 is the revision of the guideline support calculation method. Currently, child support in Illinois is calculated based on a percentage of the payor’s net income and number of kids to the parties (20% for one child, 28% for two, 32% for three, etc.). It is a statutory remnant from the days when the “typical” family consisted of one breadwinner, rather than two working parents. HB 3982 abolishes these guidelines and adopts a method that many other states are already using: the income share approach (previously discussed on this blog here).

Under the new approach, child support will be calculated based on the parents’ combined adjusted net income estimated to have been used for child-related expenses if both parents and child(ren) were living together. The Department of Healthcare and Family Services (“HFS”) will publish worksheets to aid in calculating the amount of support, as well as a table that reflects the percentage of combined net income that parents living in the same household in Illinois ordinarily spend on their children. As of the writing of this blog, those tables have not been published. However, examples of the tables and worksheets previously proposed by HFS can be found here. They will not be part of the statute, but will be updated periodically and available on the HFS website.

Is Money Withdrawn from an IRA “Income” for Child Support Purposes?

Published on: July 11, 2016 | Kollias, P.C.

It is common for a child support payor to be required to pay a percentage of any additional income above and beyond a base percentage of his or her income. This additional income may include, for example, bonuses, commissions, or work from side jobs.

Illinois courts define income as “something that comes in as an increment or addition… a gain… that is usually measured in money.” They have held that income can include a lump-sum worker’s compensation award, military allowance, deferred compensation, and the proceeds from a pension. Some Illinois courts have also included disbursements from an IRA as income for child support purposes. In such cases, if the child support payor’s judgment requires him or her to pay 20% of any additional income earned as child support, and he or she withdraws $100,000 from an IRA, the child support payee would be entitled to $20,000 in child support.

This is the rule that circuit courts in the Second Appellate District are required to follow. In the case of Marriage of Lindman, the Second District Appellate Court has held that IRA disbursements constitute income for child support purposes even where the IRA was part of a property settlement. In the case of Marriage of Eberhardt, the First Appellate District followed this precedent. This rule seems quite unfair at first blush, because the child support payor did not necessarily “gain” anything in addition to what he or she already had, that is, basically a savings account with tax restrictions.

In Illinois, When Is a Reduction in Income Sufficient to Reduce Child Support or Maintenance?

Published on: November 19, 2015 | Kollias, P.C.

Imagine the following scenario: Donald and his wife Melania decide they want to get a divorce. Donald has been employed as the President of the United States for the past two years, where he earns a salary of $400,000, and receives travel, expense, and entertainment perks. Melania mostly spends her days shopping on QVC, pampering herself at the spa, and taking tennis lessons while the nanny watches their son, Junior. In the judgment of dissolution of marriage, the court orders Donald to pay Melania $20,000.00 each month for child support until Junior attains the age of 18.

Two years pass after the divorce, and Donald finds himself running for reelection. However, because the stress of the first presidency took its toll on Donald, he goes to the barber and gets a buzzcut, in a vain attempt to assert some semblance of control over his life. Without his signature hairstyle, his polling numbers plummet, and he loses the election in a landslide so dramatic that even Walter Mondale has to laugh.

Donald now finds himself out of work, and struggles to find a suitable career in which to apply his unparalleled talent for bombast and bluster. He applies for a slew of entry level positions on monster.com, to no avail. Every prospective employer tells him that he’s overqualified. Destitute and feeling like he’s run out of options, Donald decides to start an extermination business called “Cockroach, You’re a Loser.” Donald exhibits a newly-discovered knack for the entrepreneurial, and nets a tidy profit of about $25,000.00 in his first full year of business. Because it is a far cry from his former earnings, Donald files a petition to reduce his child support obligation based on an involuntary reduction in income. Fearing a drastic reduction in her own standard of living, Melania asks the court to deny Donald’s request.

The New Illinois Marriage and Dissolution of Marriage Act Effective January 1, 2016

Published on: October 30, 2015 | Kollias, P.C.

Divorces in Illinois have been governed by the Illinois Marriage and Dissolution of Marriage Act, originally enacted in 1979. Since then, changes in family dynamics, including recent developments in Illinois law related to same-sex marriage, parentage, adoption, and in areas of embryo preservation and rights, rendered the law outdated and in need of an update. For years, Illinois legislators, judges, and prominent practitioners in the field have pushed for a revised version of the Act, but only recently has this been accomplished.

The revised law, which will become effective on January 1, 2016, has been updated in several significant ways that impact how divorces and related issues will be addressed. The law will apply to new and pending cases and will change the way that divorcing parties navigate the process of divorce.

The following is a brief summary of some of the important changes to the Act:

Grounds:

Presently, a person seeking a divorce must allege “grounds” for the divorce. Most commonly, people cite “irreconcilable differences” as the reason for a divorce. To prove irreconcilable differences have arisen to cause a marriage to fail, the party filing for divorce must prove that the parties have lived separate and apart for a continuous period of in excess of two years, or agree with the other party to waive the separation period if they have lived apart for six months. The must also prove that the marriage is over and not salvageable. The other fault-based reasons include: impotency, adultery, desertion, habitual drunkenness, excessive use of addictive drugs, poisoning, extreme and repeated physical or mental cruelty, one party being convicted of a felony or other infamous crime, or infecting the other spouse with a sexually transmitted disease.

The revised law eliminates all of the fault-based grounds for getting divorced, leaving the only grounds of irreconcilable differences. Further, instead of having to prove a statutory period of separation, the new law eliminates the separation period as well. These changes shift the focus away from having the parties blame one another for the divorce in order to allow them to proceed as amicably and quickly as possible.