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.
In the case of Marriage of Brenda and Daniel Salvatore, the parties were divorced in 2015, and the judgment for dissolution of marriage defined the husband’s child support obligation. The wife was unemployed at the time the judgment of dissolution was entered, but she had worked during the marriage. Additionally, there was no evidence presented at trial that when child support was set it was ever contemplated that she was going to remain unemployed the entire time she was receiving support.
Thereafter, the wife got a job and started earning money, and the husband’s income went down slightly. He filed a petition to modify his child support obligation. When he filed, the 2017 amendments were in full effect.
The trial court denied his petition. The court specifically found that he had failed to demonstrate that a substantial change in circumstances occurred between the date on which the judgment for dissolution of marriage was entered in 2015, and the date of filing his petition to modify child support in 2017. The court reasoned then that the parties did not intend for wife’s income from her future employment to trigger a downward modification of child support. The husband appealed.
On appeal, the husband argued that a substantial change in circumstances existed and that his child support obligation should be reduced. He cited the decrease in his gross yearly income and, more importantly, because his former wife’s new employment and income. The Appellate Court turned to the question of whether, at the time of the divorce, the parties contemplated the recipient’s future employment when they agreed to the terms of the Marital Settlement Agreement.
Citing In re the Marriage of Hughes, the court stated that a party’s increased income in and of itself does not constitute a substantial change in circumstances when that increase was based on events that were contemplated and expected at the time that the judgment of dissolution was entered. The court stated further that when the parties have entered a marital settlement agreement, a substantial change in circumstances will not be found when the parties’ present circumstances were contemplated when they entered their agreement. In re Marriage of Mulry.
Whether or not the wife’s employment was considered at the time of the entry of the judgment became the central issue. The court reviewed and assessed the language of the parties’ judgment, including the joint parenting agreement. The joint parenting agreement stated, in relevant part, “if for any reason health insurance is not provided through either party’s employer, . . . the parties can secure independent health insurance for the parties’ children and divide the costs on a proportionate basis in relation to the parties’ net incomes . . .” [emphasis added]. The joint parenting agreement also required the parties to keep the other informed of their places of employment. Finally, a miscellaneous provision regarding parenting time was also included, which stated, in relevant part, “in the event a party’s parenting time gets canceled for reasons beyond his or her control and other than for work related cancellations” the parties would cooperate in scheduling make-up parenting time.
According to the Court, the provisions of the joint parenting agreement and the fact that the wife had been employed throughout the marriage was sufficient evidence that the parties believed that at some point in the future, the wife would become employed. As such, the husband was precluded from arguing that his ex-wife’s new employment and income were a legal basis for him to seek a modification of his child support obligation.
The husband also argued that a significant disparity in results using the amended current child support statute when compared to the prior version of the statute. In this particular case, it was the difference between him paying $8,100 per month in child support (under the old law) or $3,244 per month in child support (under the current law). The court again refused to follow his logic.
The court found that the mere enactment of the statute itself did not constitute a substantial change in circumstances warranting a modification, based on the language of the statute itself. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act states, “the court may grant a petition for modification that seeks to apply the changes made to subsection (a) of Section 505 by Public Act 99-764 to an order entered before the effective date of Public Act 99-764 only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of Public Act 99-764 itself does not constitute a substantial change in circumstances warranting a modification.”
If you have questions about whether you are entitled to seek a modification of child support, contact our office for further assistance.