DuPage County Divorce Lawyer Blog

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.

Is Cigarette Smoking a Basis to Restrict Parenting Time Under Illinois Law?

Published on: October 28, 2019 | Kollias, P.C.

Would an Illinois family law court restrict a parent’s ability to smoke cigarettes or vape around a child? Specifically, can a court limit a parent’s time with his or her minor child to prevent the exposure to second-hand smoke or vapor? The answer to this hypothetical question is hazy at best.

First, there’s the data about the harm caused by smoking. According to the Centers for Disease Control and Prevention, over 34 million people in the United States smoke tobacco products. That’s about 14% of all adults in the nation. While the health effects associated with one’s personal use of tobacco are well-established, ranging from cancer to arthritis, it is further believed that approximately 2.5 million nonsmokers have died from health-related problems caused by exposure to secondhand smoke since 1964.

The Illinois Maintenance Calculation Conundrum: 2018 v. 2019

Published on: October 14, 2019 | Kollias, P.C.

The Illinois maintenance law went through a major overhaul between 2018 and 2019 in that the calculation for the amount of maintenance changed and the tax treatment of maintenance payments changed because of the new tax laws. Imagine a scenario where a judge enters a divorce judgment in 2018 that awards maintenance (alimony) to the wife, but the amount is not set at the time. The judgment just says that upon the occurrence of a specific event, the wife will be awarded guideline maintenance. The judgement does not specifically state whether the 2018 version or 2019 version of the law should be used to determine the “guideline” amount, however.

Fast forward in this scenario to March of 2019 when specific maintenance triggering event occurs. Using the 2018 version of the law, the wife would receive $400 each month for maintenance, however, using the 2019 version of the law, the wife would not be entitled to any maintenance at all. Which law should be used? Does it matter that the 2018 judgment says that the wife was in need of maintenance?

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?

Case Study: Undue Hardship & the Illinois Uniform Premarital Agreement Act

Published on: July 8, 2019 | Kollias, P.C.

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.

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.

What Is My “Income” for Calculating Maintenance and Child Support?

Published on: March 4, 2019 | Kollias, P.C.

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.

“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”).

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

New Illinois Maintenance Guidelines – Effective January 2019

Published on: January 28, 2019 | Kollias, P.C.

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.

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:

Correcting a Child’s Birth Certificate

Published on: August 20, 2018 | Kollias, P.C.

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%.