DuPage County Divorce Lawyer Blog
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”).
Under UIFSA, which generally deals with support obligations for parties who reside in different states, income for purposes of calculating support is defined broadly and generically. For instance, “income” under this act is defined as:
- Earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this State.
Thus, in order to determine what that means under UIFSA, we must determine to what extent income and other property is subject to withholding for support. Under the Income Withholding for Support Act, “income” is defined in somewhat great detail through long lists of examples of what is and what isn’t income. It states that income is defined as any form of periodic payment to an individual, regardless of source. It then lists examples, which include:
- Wages
- Salaries
- Commissions
- Vacation pay
- Bonus pay
- Compensation as an independent contractor (i.e., 1099 income)
- Workers’ compensation payments
- Disability payments
- Annuities
- Pensions and retirement benefits
- Lottery winnings
- Insurance proceeds
- Profit-sharing payments
- Severance pay
- Interest income
- Any other payments, made by any person, private entity, federal or state government, any unit of local government, school district or any entity created by Public Act.
While that may seem like just about everything, the Income Withholding for Support Act specifically excludes the following from its definition of income:
- Federal taxes
- State taxes
- Local taxes
- Social Security taxes
- Other retirement and disability contributions
- Union dues
- Amounts which are exempt under the federal Consumer Credit Protection Act
- Public assistance payments
- Unemployment insurance benefits
That definition must is not exactly the same as the definition provided by the laws under which maintenance and support obligations are determined in cases where both parties reside in Illinois and Illinois law clearly applies. Those laws are the IMDMA and the Parentage Act. In Illinois, the important definitions are contained in the IMDMA. The Parentage Act incorporates those definitions by reference.
Under the IMDMA, the definition of “income” for purposes of calculating maintenance is as follows:
- The term “gross income” means all income from all sources, within the scope of that phrase in Section 505 of this Act.”
Section 505 contains the definition of income for child support purposes. It states that “gross income” means the total of all income from all sources, except:
- benefits received by the parent from means-tested public assistance programs, such as
- Temporary Assistance for Needy Families (“TANF” benefits)
- Supplemental Security Income (“SSI”)
- Supplemental Nutrition Assistance Program (“SNAP” benefits)
- benefits and income received by the parent for other children in the household, such as:
- child support
- survivor benefits
- foster care payments.
In order to codify the Supreme Court decisions contained in Marriage of Henry and other cases, Section 505 states that social security disability and retirement benefits paid for the benefit of the subject child must be included in the disabled or retired parent’s gross income for purposes of calculating the parent’s child support obligation. However, that parent is entitled to a child support credit for the amount of benefits paid to the other party for the child.
Under Section 505, gross income also includes spousal maintenance received pursuant to a court order in the current case or any other case.
Illinois law presently calculates child support and maintenance obligations pursuant to guidelines, which require a calculation of “net income,” rather than gross income. The provisions for calculating net income are complex and beyond the scope of this blog post.
Determining which statute applies depends upon the specific type of motion or order that you are faced with in your case. These acts as a starting point in defining one’s income. If you are in need of professional assistance with respect to calculating and defining your income, feel free to contact our office with any questions or inquiries.