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Support Modification (Changes in Child Support)
and Termination of Child Support
The Gitlin
Law Firm, P.C., Woodstock, Illinois © 2008
www.gitlinlawfirm.com
Q:My
husband and I were divorced a number of years ago. I have very little
information about what he currently earns, but believe it must be substantially
more than at the time of the divorce because he bought a new house, etc.
Can I petition to modify child support?
A:The
law regarding support modification requires there to be a substantial
change of circumstances after the date of the last support order for support
to be modified. Generally I have found that all the courts require is
a reason to believe that the net income of the person paying child support
has significantly increased in order to bring a petition to modify. Traditionally,
there were two things that would have to be alleged in a petition for
modification: a substantial increase in the ability to pay, as well as
a substantial increase in the children's needs. However, Illinois case
law has held that the increase in the children's needs could be presumed
if there has been a passage of a number of years, absent a showing that
the needs have not, in fact, increased.
Q:In
my case it's only been a year-and-a-half since the entry of the divorce.
The children's needs have not really increased. On the other hand, I am
certain that my former husband is earning far more than he was at the
time we were divorced. Can I have child support increased?
A:Generally,
yes. As discussed above, the traditional test was to require both increased
needs of the children as well as increased ability to pay to be shown.
More recent case law has focused primarily on the increased ability to
pay. As a practical matter, I have found that if the time frame between
support orders is quite short, then often the court looks more carefully
at whether there has been a substantial increase in the ability to pay.
On the other hand, if a number of years have passed, I have often found
that courts are more lenient in increasing child support if it is a close
call as to whether the change is substantial.
Q:I've
heard one rule of thumb that the increase in income should be more than
20% for there to be an increase in child support. Have you heard of this
rule of thumb and do you agree with it?
A:While
I have heard of this rule of thumb, I do not agree with it for the reasons
discussed above. Moreover, in determining whether income has changed the
critical issue is not necessarily gross earnings, but net earnings. For
example, assume there is a small increase in gross income, but at the
time of the divorce, a party did not itemize his deductions on his tax
returns. If this party later buys an expensive house and has substantial
itemized deductions, it may result in an increase
in the net income. It is my belief that in support modification
proceedings the court should focus on the increase in the net income which
occasionally is the result, in part, of the purchase of a new house and
the ability to save substantial money on taxes by being able to itemize
deductions.
Q:My
wife and I are going through a divorce. Will I be required to provide
disclosure of my tax returns and other income information on an annual
basis?
A:I
have found that more and more marital settlement agreements provide for
disclosure of tax returns on an annual basis, but judges do not generally
require this exchange of information. The argument that can be made is
that this is fair because otherwise the party receiving support will not
know when it is appropriate to bring a petition to increase child support.
On the other hand, there are a number of practical and privacy concerns
as to disclosure of tax returns. For example, a spouse may remarry and
therefore file joint tax returns with a new wife. Often a new wife may
not want to be required to disclose her income information to the former
spouse on an annual basis. If disclosure is required in the marital settlement
agreement, the only option would be to file as married, filing separate.
This filing status results in payment of considerably more by way of federal
income tax for most taxpayers.
Q:My
ex-husband was not required to disclose his tax returns or pay information
voluntarily on an annual basis. How can I find out whether he is now making
more money?
A:The
rules of the courts in McHenry County and Lake County require automatic
disclosure of tax returns for the last three years upon filing a petition
to modify custody child support or maintenance. They also require disclosure
of each party's last two paycheck stubs and any other documents indicating
the party's year-to-date income. Most counties require each party to file
a financial affidavit, reflecting current income and expenses before hearing
a petition to modify child support.
Q:I
lost my job and cannot afford a lawyer to file a petition to reduce child
support. If I wait to file such a petition until I can better afford it,
can the court grant me relief back to the date I lost my job?
A:No. The law regarding failure to pay child support is that each missed child support is a
judgment of the court. Also, each missed child support payment is entitled to statutory
interest of 9% per year back to the date of the missed payment. Accordingly, even if you
do not have a job, if you have not filed a petition to modify child support, the full amount
of child support plus interest remains due and owing.
Q:What
can I do then to reduce child support?
A:To
reduce child support you must first file a petition to reduce and serve
notice of this as required by law.
Q:What
if my ex-wife told me that she agreed that she would not enforce the support
that is now owing?
A:The
amount still remains due. If there is indeed an agreement in this regard,
an agreed order should be submitted to the court providing for a reduction
in child support. Otherwise, Illinois case law is relatively clear that
oral agreements to modify child support are not enforceable.
Q:My
ex-wife keeps hounding me because of my support arrearage. What if I were
to quit my job and rely on my current wife's income? What could the court
do to me?
A:A
great deal. The first question would be whether a change or termination
of employment was made in bad faith. Generally, the test in determining
this is whether the change of employment was motivated due to an effort
to evade child support. Assume the court determines that a party does
change or terminate his or her employment in bad faith. The court can
then determine that the original support obligation remains due and owing.
Q:My
wife and I have agreed I will have nearly 50% of the parenting time with
our children. Does this mean that I will get a break from the child support
guidelines?
A:Not
necessarily. It seems reasonable that in the situation where the parenting time
is divided equally that perhaps the child support guidelines should not apply.
However, there is at least one appellate court case which suggests that the
guidelines should apply in any case that there is a primary residential parent.
There are guidelines in many states which take into consideration the parenting
time that is awarded. I believe that these support guidelines are more fair
than the Illinois guidelines. The downside, however, is that such guidelines
often result in significantly more battles than a parent trying to argue in
favor of more and more parenting time. On the other hand, it would seem that
promoting non-custodial parents' exercise of as much parenting time as
possible is a worthwhile public policy. Unfortunately, the Illinois support
guidelines do not consider the time spent as one of the explicit factors in
determining the amount of child support. In some cases, however, it is possible
that if the non-custodial parent has very extensive parenting time, this may
be a reason the court can use in finding that there is a deviation from the
support guidelines.
Q:When
does child support terminate? Does it terminate upon graduation
from high school? Does it terminate once a child turns age 18?
A:The
answer usually varies depending upon the language of a marital settlement
agreement or the divorce decree. Illinois law now provides that,
"For purposes of this Section, the term 'child' shall include any
child under age 18 and any child under age 19 who is
still attending high school." The law also requires that an
order for support include a date on which child support terminates.
Illinois law provides, "The termination date shall be no
earlier than the date on which the child covered by the order
will attain the age of 18. However, if the child will not graduate
from high school until after attaining the age of 18, then the termination
date shall be no earlier than the earlier of the date on which the child's
high school graduation will occur or the date on which the child will
attain the age of 19." This change in the law was effective
2003. However, the contents of what is provided within a marital
settlement agreement or divorce decree because this may have dates that
differ from the above quoted language of the current Illinois law.
If there is any question as to whether child support terminates, it is
critical to receive appropriate legal advice.
The Gitlin
Law Firm 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's practice is generally
limited to McHenry County, Lake County, Kane County and Boone County,
Illinois.
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:
January 1, 2008
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