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Child Support in Divorce and Paternity Cases

The Gitlin Law Firm, P.C., Woodstock, Illinois    © 2013-14
www.gitlinlawfirm.com


Q:I've heard that Illinois has minimum child support guidelines. Are these guidelines followed in most cases?

A:Yes. While the child support guidelines are called minimum child support guidelines, it is unusual that the courts will order payment of child support of more than the guideline amount.

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Q:What are the child support guidelines?

A:The child support guidelines are:

  Number of Children Percent of Supporting
Party's Net Income
 
  1 20%  
  2 28%  
  3 32%  
  4 40%  
  5 45%;  
  6 or more 50%;  

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Q:Are the support guidelines based upon my net or gross income?

A:Illinois support guidelines are based upon net income.  Gross income is total income.   It is the income before deductions for such things as taxes.  Net income is similar to (but somewhat different from) "take home" income.  It is the the income after payment of taxes and certain other allowed deductions.

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Q:I have three children and should be paying 32% of my net income for support, but the support I’m paying is not equal to 32% of my net take home pay. Why?

A:The child support guidelines allow for deductions which are not necessarily the same as the deductions on a paystub. The significant deductions are federal and state income tax properly withheld, FICA payments, mandatory retirement contributions, union dues, dependant and individual health and hospitalization insurance premiums, other obligations of support or maintenance actually paid under a court order; and a final category which is complicated. Accordingly, you should not assume that net income according to Illinois divorce or paternity law is the same as what you take-home on your pay.

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Q:What is this final category to which you refer?

A:Section 505(a)(3)(h) of the Illinois divorce law provides for a deduction for “expenditures for payment of debts that represent reasonable and necessary expenses for the production of income, medical expenses, expenditures necessary to preserve life or health, reasonable expenditures for the benefits of the child and the other parent, exclusive of gifts.” One of the most complicated of these provisions is the one that calls for payment of debts that represent reasonable and necessary expenses for the production of income. There is a line of case law addressing whether business expenses can be deducted under this category. For a discussion of this you should seek legal advice. For the sake of simplicity, however, generally business expenses are not deductible unless there is a debt. I have also found that one of the most under-used deductions is the deduction which provides for reasonable expenditures for the benefit of the child and the other parent. There are a number of expenses which arguably could be deducted under this category.  In 2012 there is a new deduction for "premiums for life insurance ordered by the court to reasonably secure payment of ordered child support."

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Q:What about my 401(k) contribution? Is this a deduction in determining my net income?

A:No. 401(k) contributions are generally not mandatory. Accordingly a 401(k) contribution would only be a deduction if it were required to be made as a condition of employment.

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Q:Can the federal tax that is assumed for child support purposes differ from the federal tax that is withheld on my paycheck stubs?

A:Yes. This amount may differ substantially. The reasons are many. First, the number of deductions you take for the purpose of your paystub may differ from the number of actual deductions claimed at year end. A party’s filing status may also differ. The reasons that withholdings may not be accurate include the fact that withholding tables do not address whether or not someone has itemized deductions. Such itemized deductions increase a party’s net income. For this and other reasons it is important that a lawyer determine net income not based only upon your pay stubs, but based upon what the filing status will be at year end and following a divorce.

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Q:I am paid a base salary plus an occasional bonus or commission.  The bonus or commission amounts vary significantly and I am not guaranteed to receive any such money. Is it possible to pay a percentage amount on the bonus or commissions?

A:Illinois law requires child support to be stated in “dollar amounts.” But there is an amendment to the statute which provides, “if the court finds that the child support amount cannot be expressed exclusively in dollar amounts because all or a portion of the payor’s net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.” This sort of provision works well in cases where an employee receives a base salary and then receives occasional bonus checks or occasional commission checks. For such orders, an order can require the party paying child support to pay a percentage of the bonus or commission checks paid in addition to the regular child support payments.  Many lawyers draft  percentage orders for child support poorly, resulting in ambiguous orders.  The critical issue is to address how net income will be determined.  Paycheck stubs may not be an accurate way of basing net income because the deductions under the child support statute may differ from the deductions on an individual’s paycheck.

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Q:What about for an individual where each check varies? How is child support then determined?

A:When there is no base income, but each check is variable, it is much more difficult to draft an enforceable award with respect to child support. One solution is to average support over a relevant time period. There are a number of Illinois appellate court cases addressing the circumstances for income averaging in cases where the net income is highly variable.

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Q:What about daycare expenses? How are these divided?

A:Generally, child care expenses for the children are divided between the parties. Since 2012 we now have statutory law providing that child care expenses may be what might be termed an "add on" to child support.  Perhaps the most common way such expenses are divided is for them to be divided equally. But often the divorce court will divide such expenses on a different percentage basis between the parties. The 2012 legislation regarding the add-ons" to support provide:  "The court, in its discretion, in addition to setting child support pursuant to the guidelines and factors, may order either or both parents owing a duty of support to a child of the marriage to contribute to the following expenses, if determined by the court to be reasonable:
(a) health needs not covered by insurance;
(b) child care;
(c) education; and
(d) extracurricular activities."

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Q:Should daycare expenses include expenses for my former spouse to go to the movies, etc.?

A:No. Usually a provision for daycare expenses will state that it is limited to expenses necessary for the custodial spouse’s employment. On the other hand, the actual order that may be entered will vary depending on the order of the court or the language which may be included in a marital settlement agreement.

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Q:What about medical expenses?

A:Generally the non-custodial parent is required to maintain health insurance for the benefit of the children. There are occasions when the custodial parent will pay for such health insurance premiums if she or he has better insurance coverage. If so, the non-custodial parent may be ordered to contribute toward the insurance premiums.

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Q:What about medical expenses which are not paid by medical insurance?

A:Generally these expenses will be divided between the parties in some manner. If there is a significant difference between the incomes of the parties, often the non-custodial parent will be required to pay a somewhat greater percentage of these expenses.

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Q:What does child support cover in Illinois?

A:Often clients will ask their divorce lawyer what child support covers.  Unfortunately, the legislature has not yet revisited the child support guidelines since they were enacted more than 20 years ago (although Illinois may adopt an income shares model in the somewhat near future).  And Illinois is not in the mainstream in terms of the guidelines we have chosen (not following the income shares model).  The 2012 amendments perhaps will provide greater clarity on what other add-ons support may cover such as (a) health needs not covered by insurance; (b) child care; (c) education; and
(d) extracurricular activities.  A related question is whether the child support custodian should use the child support funds to pay for expenses for the children.  The answer to this related question is that generally Illinois courts will not examine the nature of the custodial parents spending to ensure that support payments go toward expenses of the children.  There simply is not Illinois law providing for the right for an accounting of how support funds are spent. 

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Q:I do quite well, financially. If I had to pay support based upon the guidelines, it would mean that I would pay more than $5,000 monthly for support? Will I have to pay support based upon the guidelines?

A:There are a series of cases involving child support paid in high income cases. While the Illinois support guidelines do not provide for an income level at which the support guidelines are no longer applicable, my experience is that most judges have what I often refer to as a “soft ceiling.” By this, I mean that depending upon the facts and circumstances of each case there is usually an amount of child support beyond which the court will decide that the children do not have a shown needs. Generally, child support in high income cases has two competing interests: the needs of the children as against the ability of the payor to pay child support. At a certain income level, the courts will generally deviate from the support guidelines.

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Q:My parents have gifted me for the past several years $10,000 each year.  Is this income considered in my child support obligation?

A:Probably.  In 2004, the Illinois Supreme Court decided the Rogers case.  The issue in many cases is whether income is non-recurring.  The decision states:

Having said that, we hasten to add that the nonrecurring nature of an income stream is not irrelevant. Recurring or not, the income must be included by the circuit court in the first instance when it computes a parent's "net income" and applies the statutory guidelines for determining the minimum amount of support...  If, however, the evidence shows that a parent is unlikely to continue receiving certain payments in the future, the circuit court may consider that fact when determining *** whether, and to what extent, deviation from the statutory support guidelines is warranted. Moreover, if the payments should stop earlier than anticipated by the court, the parent obligated to provide support based on those payments may seek modification of the support order pursuant to section 510 of the Act.

This decision complicates the calculation of child support because it starts with the understanding that loans and gifts may constitute income but that if the loans are likely not going to be received in the future, it may be a reason to deviate from the support guidelines.  The "bookend" to that decision is the Illinois Supreme Court McGrath decision.  This, like all family law topics needs to be addressed with your lawyer. 

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The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.

The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401

www.gitlinlawfirm.com

Gitlin Law Firm, P.C.

Updated:  October 29, 2013


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