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?
The Illinois Code of Civil Procedure (the “Code”) provides that generally, no judgment can be enforced after seven (7) years from the time the same is rendered, except upon revival. 735 ILCS 5/12-108(a). However, in 1997, Section 12-108(a) of the Code was amended to include a provision that stated, “child support judgments, including those arising by operation of law, may be enforced at any time.” Previously, child support judgments would have to be enforced or revived within seven years. Beginning in 1997, however, revival and enforcement could happen at any time.
Prior to the 1997 amendment, courts had applied the 20-year statute of limitations set forth in Section 13-218 of the Code to child support judgments, finding that child support judgments could only be revived within 20 years of the entry of the judgment. That meant if a child support judgment was entered in 1950 and a party sought to collect on it in 1971, the judgment would be time-barred and uncollectible. However, after 1997, with the amendment to Section 12-108, no matter when the child support judgment is entered, it may be enforced with interest anytime. Further, section 505(d) of the Illinois Marriage and Dissolution of Marriage Act additionally provides that:
(d) Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.
In interpreting these laws, Illinois courts have attempted to resolve the issue of whether any time limits to enforcement of a child support judgment exist. Specifically, the court in Marriage of Saputo held that child support judgments can be enforced, with interest, at any time, no matter how old the judgment may be. In the Saputo case, a Judgment of Dissolution of Marriage was entered in 1966 obligating the Husband to pay child support. In 2004, the Wife filed a petition to revive the judgment contending the Husband had made no child support payments since the 1966 judgment (38 years after the divorce) and that the Husband owed her $375,529.71 for child support arrearages after interest was included at 9% each year.
The Husband attempted to have Wife’s petition dismissed, alleging that her claim was time-barred under Section 13-218 of the Code, which provided that revivals of judgments can only take place within 20 years of entry of the Judgment. However, the Appellate Court disagreed stating that the language contained in section 12-108(a), as amended in 1997, “plainly and unambiguously provides that child support judgments may be enforced at any time, and . . . thus excludes child support judgments from those judgments that have a time limit on their enforcement and require revival.” The Appellate Court held that it was clear that the 1997 amendment to section 12-108(a) excepts child support judgments from the application of section 13-218 and its 20-year limitations period for revival of judgments.
While the court did make the above finding, the court stated that neither party addressed whether the 1997 amendment to section 12-108(a) applied retroactively so as to enable a party to enforce child support judgments that had become time-barred under section 13-218 at the time the 1997 amendment to section 12-108(a) became effective on July 1, 1997. The court said that it was clear that a least some of the child support payments were not time-barred by the 20-year statute of limitations on July 1, 1997 so the court left the issue of retroactivity undecided.
Since the Saputo case was decided, there has been no published case that answers the question it left unanswered. However, an unpublished case and certain judges at the trial court level have ruled that any child support judgments entered and/or accrued prior to July 1, 1977 are time-barred and thus, cannot be collected upon or enforced. Whether that is the correct decision remains to be seen. However, using the above example, and using the Saputo guidelines, it would appear that the wife would be entitled to collect at least the child support owing after 1977, but the argument can and should be made that she should be entitled to enforce all of the payments owing from 1970 to the child’s emancipation.