Illinois Law re Child Support

Within the past five years, the statutory law regarding child support has had the most changes since the adoption of the child support guidelines. This presentation will first will highlight significant changes to §505 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), and many of the statutory provisions regarding support which are often overlooked.

A.IMDMA §505 - Child Support:

By Federal mandate, each state must review and amend its guidelines every four years. Illinois has been deficient in so doing. The first time that Illinois did so was in 2003 with Public Act 93-0148 in which Illinois increased the support level for two children to 28% of net. There are only six states (including Illinois) which follow a model in which the support guidelines are based upon a percentage of income. As of 2007, 39 states follow what is called the "income shares" model.

1.General Support Provisions: Some of the significant portions of §505(a) read as follows (enforcement procedures and certain other portions are generally omitted; emphases are added):

(a)In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct. The duty of support owed to a minor child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. 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.

(1)The Court shall determine the minimum amount of support by using the following guidelines:

Number of children		Percent of Supporting Party's Net Income
	1		20%
	2		28%*(changed in 2003)
	3		32%
	4		40%
	5		45%
	6 or more		50%

(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include ***.

If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.

Comment:The court should review any judgment of dissolution of marriage where there is a deviation to make certain that not only are there findings as to the reason for the deviation, but also the amount of child support that would have been required under the guidelines, if this is determinable.

(3) "Net income" is defined as the total of all income from all sources, minus the following deductions:

(a) Federal income tax (properly calculated withholding or estimated payments);
(b) State income tax (properly calculated withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization insurance premiums;
(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.

Comment:Significant case law addressing these deductions will be discussed below.

***

(5) Base Plus Percentage — Allowable if Finding: The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount 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 other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.

Comment:This legislation may render irrelevant the Supreme Court's IRMO Mitchell decision which addressed void versus voidable percentage orders of support. There has been no case law addressing whether a percentage order without a finding per Section 505(a)(5) [stating that all or a portion of the net income is uncertain as to source, timing or amount] would render the order voidable.

Note Ackerley Decision Re Additional “Bonus” Income: A recent decision which is enclosed addresses the issue of what constitutes additional income (bonuses) for the purpose of payment of support. (See IRMO Ackerley holding that monies received in excess of base pay, but not explicitly characterized as bonus funds, were in actuality a bonus.) This is worthwhile reading and is a warning for careful drafting in any case where there is a base plus a percentage order of support. Careful drafting will anticipate payment in a means other than a bonus or a commission. Careful drafting could not get around providing stock options in lieu of additional compensation. The question in Ackerley was whether the additional income was a bonus as opposed to the ex-husband's contention that it was additional weekly income because he was working harder.

(6) [Documents Obtained Via Subpoena Self-Authenticating if Non-Compliance with Discovery Order Plus No Presence at Hearing:] If (I) the non-custodial parent was properly served with a request for discovery of financial information relating to the non-custodial parent's ability to provide child support, (ii) the non-custodial parent failed to comply with the request, despite having been ordered to do so by the court, and (iii) the non-custodial parent is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the non-custodial parent's ability to provide child support that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further foundation for its admission.

(a-5) [Contempt Enforcement Proceedings and Notice to Payor]: In an action to enforce an order for support based on the respondent's failure to make support payments as required by the order, notice of proceedings to hold the respondent in contempt for that failure may be served on the respondent by personal service or by regular mail addressed to the respondent's last known address. The respondent's last known address may be determined from records of the clerk of the court, from the Federal Case Registry of Child Support Orders, or by any other reasonable means.

Section 505(b) now provides in part:

In addition to the penalties or punishment that may be imposed under this Section, any person whose conduct constitutes a violation of Section 15 of the Non-Support Punishment Act may be prosecuted under that Act, and a person convicted under that Act may be sentenced in accordance with that Act. The sentence may include but need not be limited to a requirement that the person perform community service under Section 50 of that Act or participate in a work alternative program under Section 50 of that Act. A person may not be required to participate in a work alternative program under Section 50 of that Act if the person is currently participating in a work program pursuant to Section 505.1 of this Act.

2.Public Act 91-0397: Interest on Unpaid Support

SB 469 amended 750 ILCS 5/505 and has been effective since 1999. Section 505(b) (immediately prior to Section (c) reads, “A support obligation, or any portion of a support obligation which becomes due and remains unpaid for 30 days or more shall accrue interest at the rate of 9% per annum.” There are corresponding changes to the provisions of Illinois Public Aid Code, the Non-Support of Spouse and Children Act and Illinois Parentage Act of 1984 (Section 20.7).

The legislation thus clarifies the issue of whether Finley v. Finley, 81 Ill.2d 317, 410 N.E.2d 12 (1980) is still good law regarding interest on support arrearages. IRMO Steinberg, 302 Ill.App.3d 845, 236 Ill.Dec. 21, 706 N.E.2d 895 (1st Dist., 3d Div. 1998) held that an award of interest from the date child support payments were due is discretionary with the trial court. The payor in Steinberg argued that the trial court erred in holding that interest from the date child support was due was mandatory. The appellate court agreed, citing its opinion in IRMO Kaufman [299 Ill.App.3d 508, 233 Ill.Dec. 543, 701 N.E.2d 186 (1st Dist., 2d Div. 1998), GDR 98-103, which held that dissolution judgments are treated like judgments in chancery proceedings, to which the Code of Civil Procedure §2-1303, mandating nine percent interest on judgments, does not apply.

3.Public Act 90-476: "Discovering Hidden Assets" — Piercing the Ownership Veil in “Alter Ego” Type Cases

Section 505(b) of IMDMA provides:

If there is a unity of interest and ownership sufficient to render no financial separation between a non-custodial parent and another person or persons or business entity, the court may pierce the ownership veil of the person, persons, or business entity to discover assets of the noncustodial parent held in the name of that person, those persons or that business entity. The following circumstances are sufficient to authorize a court to order discovery of the assets of a person, persons, or business entity and to compel the application of any discovered assets toward payment on the judgment for support:

(1) The non-custodial parent and the person or persons or business entity maintain records together.
(2) The non-custodial parent and the person, persons or business entity fails to maintain an arms length relationship between themselves with regard to any assets.
(3) The non-custodial parent transfers assets to the person, persons or business entity with the intent to perpetrate a fraud on the custodial parent.

With respect to assets which are real property, no order entered under this paragraph shall effect the rights of bona fide purchasers, mortgagees, judgment creditors, or other lien holders who acquire their interest in the property prior to the time a notice of lis pendens pursuant to the Code or Civil Procedure or a copy of the order is placed of record in the office of the recorder of deeds for the county in which the real property is located. 750 ILCS 505(b).

Comment:Also note that §12-112 of the Code of Civil Procedure was amended in order to effectuate the above provisions. The corresponding provisions of the Illinois Parentage Act of 1984 were also amended (§15(b)(2.5)).

4.Public Act 90-18: Welfare Reform Implementation Act - Lien Provisions as to Over Due Support

A new provision was added to 505(d), the final sentence of which now reads, “A lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue support owed by the noncustodial parent.” 750 ILCS 505(d).

Comment: This language was necessary to permit the ability to garnish wages automatically pursuant to a notice for income withholding as discussed below.

5.Notification Provisions of 505(f) — First Notification Provision

Section 505(f) of the IMDMA provides:

(f) All orders for support, when entered or modified, shall include a provision requiring the obligor to notify the court [and, in cases where the party is receiving child and support services under Article X of the Illinois Public Aid Code, the Illinois Department of Public Aid -- now the Department of Healthcare and Family Services ] within 7 days, (I) of the name and address of any new employer of the obligor, (ii) whether the obligor has access to health insurance coverage through the employer or other group coverage and, if so, the policy name and number and the names or persons covered under the policy, and (iii) of any new residential or mailing address or telephone number of the non-custodial parent. In any subsequent action to enforce a support order, upon a sufficient showing that a diligent effort has been made to ascertain the location of the non-custodial parent, service of process or provision of notice necessary in the case may be made at the last known address of the non-custodial parent in any manner expressly provided by the Code of Civil Procedure of this Act, which service shall be sufficient for purposes of due process.

Compare this section with the provisions of Section 505(h) of the IMDMA discussed below.

Comment: These provisions basically require that all orders of support include provisions requiring the child support obligor to notify the court of certain information as to new employment, health insurance information, and residential or mailing address. These are in addition to the notification provisions of the Income Withholding for Support Act. In cases where payments are not made through the SDU, I include language in my marital settlement agreement which is consistent with the above provisions.

6.Termination of Support Dates Must be Stated and Support Continues to Age 19 if Child Still Attending High School:

Section 505(g) provides:

An order for support shall include a date on which the current support obligation terminates. 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. The order for support shall state that the termination date does not apply to any arrearage that may remain unpaid on that date.

Comment: Many court orders ignore the requirement to include a specific date on which child support terminates. The child support order should not merely include language such as "child support terminates may be when the child turns age 18 or graduates from high school, whichever later occurs." The attached form support order provides for a termination of child support on a date certain. The new language is the reference to age 19 as to the presumptive early termination date if a student is still attending high school. Keep in mind, however, that this legislation would only effect the termination dates on new orders and may not effect the provisions of previous orders providing different termination dates.

WARNING: IRMO Mulry, 314 Ill.App.3d 756, 247 Ill.Dec. 612,, 732 N.E.2d 667 (4th Dist., 2000), held that a father was required to pay both child support and post-high school educational expenses when marital settlement agreement stated his obligation for child support would continue “if the child is attending post-secondary education the child's graduation from * * * college * * * or reaching age 23, whichever shall occur first.” The opinion stated: “[A]lthough a provision in a dissolution judgment for the payment of a child's college expenses is a term in the nature of child support (citations omitted) it does not foreclose one's obligation to pay support or educational expenses, or both. The parties' separation agreement makes reference to [the ex-husband's] “obligations for support” and his “obligations for each child.”

7. IMDMA Sec. 505(h) - Notification of Employment Termination — Second Notification Provision — Includes Recipient:

Section 505(h) requires written notification as to new employment and termination of employment. The statute provides:

(h) An order entered under this Section shall include a provision requiring the obligor to report to the obligee and the clerk of the court within 10 days each time the obligor obtains new employment, and each time the obligor's employment is terminated for any reason. The report shall be in writing and shall, in the case of new employment, include the name and address of the new employer. Failure to report new employment or the termination of current employment, if coupled with nonpayment of support for a period in excess of 60 days, is indirect criminal contempt. For any obligor arrested for failure to report new employment bond shall be in the amount of the child support that should have been paid during the period of unreported employment. An order entered under this Section shall include a provision requiring the obligor and obligee parents to advise each other of a change in residence within 5 days of the change except when the court finds that the physical, mental or emotional health of a party or that of a minor child, or both, would be seriously endangered by disclosure of the party's address.

Comment: My marital settlement agreement will contain the provisions set forth above as well as the provisions as to statutory interest. Thus, an additional provision of your MSA should read:

Provisions of MSA Re Support Required: A support obligation required under the terms of the judgment for dissolution of marriage or any portion of a support obligation that becomes due and remains unpaid for 30 days or more shall accrue simple interest at the rate of 9% per annum. As required by Section 505(f) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the Husband shall provide written notice to the Clerk of the Court, within 7 days of: (i) of the name and address of any new employer of the payor; (ii) whether the payor has access to health insurance coverage through the employer or other group coverage and, if so, the policy name and number and the names or persons covered under the policy, and (iii) of any new residential or mailing address or telephone number of the non-custodial parent.

In addition, as required by Section 505(h) of the IMDMA, the Husband shall inform the Wife within 10 days each time he obtains new employment, and each time his employment is terminated for any reason. The report shall be in writing and shall, in the case of new employment, include the name and address of the new employer. In addition, both the Husband and the Wife shall be required to inform each other of a change of residence within five days of the change.

8. IMDMA Sec. 505.3 - Third Notification Provision — Further Disclosures Required by Both Parents to Clerk of Court — (State Case Registry):

Section 505.3 provides:

Sec. 505.3. Information to State Case Registry.

(a) In this Section: "Order for support", "obligor", "obligee", and "business day" are defined as set forth in the Income Withholding for Support Act. "State Case Registry" means the State Case Registry established under Section 10-27 of the Illinois Public Aid Code.

(b) Each order for support entered or modified by the circuit court under this Act shall require that the obligor and obligee (I) file with the clerk of the circuit court the information required by this Section ... at the time of entry or modification of the order for support and (ii) file updated information with the clerk within 5 business days of any change. Failure of the obligor or obligee to file or update the required information shall be punishable as in cases of contempt. The failure shall not prevent the court from entering or modifying the order for support, however.

(c) The obligor shall file the following information: the obligor's name, date of birth, social security number, and mailing address. If either the obligor or the obligee receives child support enforcement services from the Illinois Department of Public Aid [now the Illinois Department of Healthcare and Family Services] under Article X of the Illinois Public Aid Code, the obligor shall also file the following information: the obligor's telephone number, driver's license number, and residential address (if different from the obligor's mailing address), and the name, address, and telephone number of the obligor's employer or employers.

(d) The obligee shall file the following information: (1) The names of the obligee and the child or children covered by the order for support. (2) The dates of birth of the obligee and the child or children covered by the order for support. (3) The social security numbers of the obligee and the child or children covered by the order for support. (4) The obligee's mailing address.

Comment: We now have three provisions for notification to the clerk — Section 505(f), 505(h) and 505.3. Unfortunately, the time frames for disclosure are inconsistent and range from five days to ten days. One would believe that the legislature would have opted for some consistency to send a strong message to obligors so that they would have know exactly what was required. It is also curious that the legislature provided for contempt sanctions for failure of both parents to provide this further information to the clerk.

To summarize these confusing notification statutes:

505(f) requires payor's disclosure to the clerk within 7 days of:

The name and address of new employer;

Whether payor has access to health insurance coverage through employment, etc.

Any new residential or mailing address or telephone number.

505(h) requires payor's disclosure to both recipient and the clerk in writing within 10 days of:

Each time the payor receives a new job (including the name and address)

Each time the payor's job is terminated;

Failure to report if coupled with non-payment for more than 60 days = indirect criminal contempt.

505(h) also requires both parents to advise each other to a change in residence within 5 days (with the domestic violence exceptions).

Section 505.3 requires disclosure of both parents to the clerk.

Payor must disclose: Name, date of birth, social security number and mailing address.

Recipient must disclose name, dates of birth and SSNs of the recipient and of the children. The recipient must also disclose her address.

Both are required to provide an update to the clerk within 5 days of any new information.

B. Amendments to §505.2 (Health Insurance) and IRMO Takata:

Amendments: One of the important provisions of the new legislation is the requirement that every support order includes a provision for health insurance coverage of a child. The amendment states:

(b) Whenever the court establishes, modifies or enforces an order for child support..., the court shall include in the order a provision for health insurance care coverage of the child which shall, upon request of the obligee or Public Office, require that any child covered by the order be named as a beneficiary of any health insurance plan that is available to the obligor through an employer or labor union or trade union.

(d) The dollar amount of the premiums for court-ordered health insurance *** shall be considered an additional child support obligation owed by the obligor. Whenever the obligor fails to provide or maintain health insurance pursuant to an order for support, the obligor shall be liable to the obligee for the dollar amount of the premiums which were not paid and shall also be liable for all medical expenses incurred by the minor child which would have been paid or reimbursed by the health insurance which the obligor was ordered to provide or maintain. In addition, the obligee may petition the court to modify the order based solely on the obligor's failure to pay the premiums for court-ordered health insurance. ***. 750 ILCS 5/505.2(d) (emphasis added).

Comment: Assume the child support recipient has the better health insurance policy available through her employer, but requests that the child be named as a beneficiary of a health insurance plan available through the husband's employer, labor union or trade union of the obligor. The child support obligor must then maintain such insurance, but there is no provision in the statute as to which insurance is to be primary and which is to be considered secondary.

A recent case addressing the health insurance issue is IRMO Seitzinger, 333 Ill.App.3d 103, 107-08, 775 N.E.2d 282, 286 (Fourth Dist., 2002). In Seitzinger the trial court entered an order requiring the custodial parent to maintain health insurance (presumably because she had the better insurance). The ex-wife appealed contending that her former husband should have been required to pay half the cost of the insurance premiums. Seitzinger stated that, “the duty to provide health insurance is an integral part of a parent's present and future support obligations.” The case held that when insurance is available through an employer, under 505.2(b) providing health insurance is mandatory on request of the support recipient. Accordingly, the ex-husband was required to contribute half the cost of the health insurance premiums. A quote from the case is interesting. It states, “The joint custody he enjoys with Kimberly means he has joint obligations as well as joint benefits. He is just as responsible for day care and health insurance costs now as when the parties were married.”

Note the use of the word “obligations.” This terminology is important because a parent may be entitled to the dependency exemptions only if he is current in payment of child support or the agreement may refer to support obligations.

IRMO Takata - A Potential Windfall for Custodial Parent:

IRMO Takata, 304 Ill.App.3d 85, 237 Ill.Dec. 460, 709 N.E.2d 715 (2d Dist. 1999), holds:

Where a party fails to pay health insurance premiums as required by the underlying judgment, the obligor must pay the custodial parent for all of the cost of the health insurance premiums he failed to pay for the children per §505.2(d) of the IMDMA.

The ex-husband in Takata failed to pay the health insurance premiums as required by the original divorce judgment and post-judgment order. The ex-wife then insured the children through Medicaid. The Medicaid coverage was at no cost to the ex-wife.

The ex-wife petitioned for rule to show cause requesting, in part, an award of the dollar amount of the unpaid insurance premiums pursuant to IMDMA §505.2(d). The trial court found the ex-husband in contempt for failure to pay health insurance, but ordered him to pay only 25% of the unpaid health insurance premiums. The court reasoned that this percentage represented the amount of additional child support the ex-wife would have received had the premiums not been deducted from the ex-husband's income in determining his child support obligation. The trial court further reasoned that awarding the ex-wife the full amount of the premiums would result in a “windfall” because the ex-wife paid nothing to have the children covered by Medicaid.

The Second District court reversed the trial court's order that the ex-husband pay the ex-wife only 25% of the health insurance premiums he failed to pay for the children. The appellate court recited the child support statute which provides, “Whenever the obligor fails to provide or maintain health insurance pursuant to an order for support, the obligor shall be liable to the obligee for the dollar amount of the premiums which were not paid ***. 750 ILCS 5/505.2(d) (emphasis added).” Takata held the use of the word “shall” left the trial court without discretion to award an obligee less than the full dollar amount of the unpaid insurance premiums. It further stated the trial court's discounting of the ex-husband's liability “rewards the ex-husband for shirking his parental court-ordered duties.”

C. Public Act 90-673 Consumer Reporting and Publication of Deadbeat Parents:

Illinois Public Aid Code (§10-16.4 (305 ILCS 5/10-16.4), the Illinois Marriage and Dissolution of Marriage Act (§706.3) and the Illinois Parentage Act of 1984 (§20.5) all contain corresponding provisions. The Acts first define a "consumer reporting agency" according to §603(f) of the Fair Credit Reporting Act, 15 U.S.C. 1681a(f). §706.3 of the IMDMA and their counterparts now provide:

(b)Consumer Reporting Agency Provisions: Whenever a court of competent jurisdiction finds that an obligor either owes an arrearage of more than $10,000 or is delinquent in payment of an amount equal to 3 months' support obligation pursuant to an order for support, the court shall direct the clerk of the court to make information concerning the obligor available to consumer reporting agencies.

(c)"Deadbeat" Parent Publication: Whenever a court of competent jurisdiction finds that an obligor either owes an arrearage of more than $10,000 or is delinquent in payment of an amount equal to 3 months' support obligation pursuant to an order for support, the court shall direct the clerk of the court to cause the obligor's name and address to be published in a newspaper of general circulation in the area in which the obligor resides. The clerk shall cause the obligor's name and address to be published only after sending to the obligor at the obligor's last known address, by certified mail, return receipt requested, a notice of intent to publish the information. This subsection (c) applies only if the obligor resides in the county in which the clerk of the court holds office. Public Act 90-673, effective January 1, 1999.

D. Amended Legislation re Body Attachments - 505 and 713 - Public Act 91-113:

Public Act 91-113 amends amend 750 ILCS 5/713 and provide for service of a notice for body attachment to enforce a support order by regular mail instead of by certified mail with restricted delivery.

As stated above, Section 505(a-5) provides for notice for contempt in support enforcement cases to be mailed to the last known address. There were also amendments made to Section 713(a) regarding body attachment. It provides:

Notices under this Section shall be served upon the Obligor by any means authorized under subsection (a-5) of Section 505 either (1) by prepaid certified mail with delivery restricted to the Obligor, or (2) by personal service on the Obligor.

E. Public Act 92-203: Enforcement of Support after Child Turns Age 18:

The court does not lose the powers of contempt, driver's license suspension, or other child support enforcement mechanisms, including, but not limited to, criminal prosecution as set forth in this Act, upon the emancipation of the minor child or children.

This new statutory provision effectively wipes out the ruling of the appellate court decision in Fritch v. Fritch, 224 Ill.App.3d 29, 166 Ill.Dec. 469, 586 N.E.2d 427 (1st Dist., 5th Div. 1991). Fritch held that the trial court erred by entering a contempt finding against father as a means to enforce payment of a child support arrearage where children had reached their majority. It held:

Contempt is not a proper means of enforcing payment of child support arrearages where the children have reached their majority. (Fox v. Fox (1978), 56 Ill.App.3d 446, 371 N.E.2d 1254.) Here, defendant's youngest child reached the age of majority before plaintiff filed the instant petition.

II.Income Withholding for Support Act (IWSA):

A. Background:

The genesis for the statutory revisions was the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. §314 of the Act requires states to have statutorily prescribed procedures for mandatory income withholding for support payments subject to enforcement. Additionally, the law requires each state to have the Uniform Interstate Family Support Act in effect as of January 1, 1998. In 1999 the Illinois legislature consolidated the various withholding provisions into one act with nearly identical provisions relating to income withholding for support that were contained in the Public Aid Code, the IMDMA, the Non-Support Act and the Illinois Parentage Act of 1984. Section 706.1 now reads simply, “Orders for support entered under this Act are subject to the Income Withholding for Support Act.”

Many requirements of the new legislation can be determined by reviewing the attached forms. The amendments provide that the income withholding notice shall be “in the standard format prescribed by the federal Department of Health and Human Services.” (750 ILCS 28/20 (c)(1).

Understandably, the existing Illinois Department of Healthcare and Family Services Form is directed toward cases in which the child support recipient is also the recipient of public aid.

Illinois law does not require the notice for income withholding to be approved by the judge or by the clerk of the court to make certain that it conforms to the underlying support order. The draft order/notice follows the federal form in that it provides for the court's "authorization." It is anticipated that the court could approve the form notice to verify that it conforms to the support order.

The amendments to §706.1 (now contained in the Income Withholding for Support Act) contains key amendments to the Illinois Marriage and Dissolution of Marriage Act. First, the amendments no longer contain any provision for an "order" for withholding. We now have notices for withholding of income.

B. Significant Legislation Addressing Withholding of Support - Public Act 91-212:

1. Public Act 91-212 incorporates the changes of Public Act 90-790 into Income Withholding for Support Act.

a. State Disbursement Unit (SDU): Since 10/1/99 the SDU has been collecting and disbursing payments made under court order in all cases in which support is paid under the Income Withholding for Support Act.

b. Information to State Registry: Within 5 business days the clerk must provide the docket number of all orders setting or modifying support along with information which includes the driver's license for both parents. The parties must report any changes within 5 days and the clerks must report any changes they happen to find out about. (305 ILCS 5/10-10.5)

C. General Provisions of Income Withholding for Support:

1. Service of Notices:

As is stated below, the notices are to be served upon the employer, but do not have to be served by personal delivery or certified mail. Instead, they can be served by:

Regular mail,

Certified Mail, return receipt requested;

Fax or “other electronic means;

Personal delivery. (750 ILCS 28/24(g)).

At the time of the service upon the payor, the child support recipient (or the public office) shall serve a copy of a notice upon the obligor by ordinary mail addressed to his or her last known address. The child support recipient is then to file proofs of service upon the payor with the Clerk of the Court. (Sec. 24(g)).

[See legislation requiring notice for income withholding to be filed with proof of service.]

a. Subsequent Service of Same Notice:

Any other employer may be served at a subsequent time with the same income withholding notice without further notice. (24(h)).

2. Delinquencies Versus Arrearages in Support:

The amendments no longer require the court to determine past-due support before a child support delinquency can be withheld from an obligor's wages. Instead, the amendments merely require a notice of income withholding to be served upon the employer with a copy to the obligor. The notice may include payments on any purported delinquency that are not to be less than 20% of the total of the current child support order plus the payments on any arrearage. The amendments require that every time there is a support obligation, an order for support must be entered. Among the requirements in the support orders is the requirement to state the amount the obligor must pay in the future on any delinquency that might accrue. The payor must immediately withhold (14 days after receipt of notice to withhold). It is now the obligor's duty to object to any withholding within 20 days after service.

Thus, there are new definitions of the terms "arrearage" and "delinquency." An arrearage is now a child support arrearage as determined by the court and incorporated into a court order. A delinquency is not established by the court, but is a payment that remains unpaid after the entry of an order for support.

3. Withholding Notices Standard Form:

The current legislation requires that every support order shall:

Require an income withholding notice to be prepared and served immediately upon any payor of the obligor by the obligee or public office, unless a written agreement is reached between and signed by both parties providing for an alternative arrangement, approved and entered into the record by the court, which ensures payment of support. In that case, the order for support shall provide that an income withholding notice is to be prepared and served only if the obligor becomes delinquent in payment the order for support; and

Contain a dollar amount to be paid until payment in full of any delinquency that accrues after entry of the order for support. The amount for payment of delinquency shall not be less than 20% of the total of the current support amount and the amount to be paid periodically for payment of any arrearage stated in the order for support.

The income withholding notice is required to be in the "standard format prescribed by the federal Department of Health and Human Services." Nevertheless, numerous requirements in the IWSA of what must be provided in notices for income withholding are not exactly in this standard format. Accordingly, the attached form has been revised to correspond as directly as possible to Illinois law.

The IWSA requires the notice, among other things, to:

Direct any payor or labor union or trade union to enroll each child as a beneficiary of a health insurance plan and withhold or cause to be withheld, if applicable any required premiums; and

Include the date that withholding for current support terminates which shall be the date of termination of the current support termination set forth in the order for support.

4. Income Withholding After Accrual of Delinquency:

Whenever an obligor accrues a delinquency in support, the obligee (or public office) may prepare and serve upon the payor an income withholding notice that "contains a computation of the period and total amount of the delinquency as of the date of the notice; and directs the payor to withhold the dollar amount required to be withheld under the order for support for payment of the delinquency." Once again, the obligor must object to the withholding notice within 20 days by filing a petition to contest withholding. The only grounds to contest withholding are a dispute concerning the existence or amount of the delinquency or the identity of the obligor. The clerk is then to notify both the obligor and the obligee of the time and place for the hearing on the petition to contest withholding.

5. Initiating Withholding Where Court Has Not Required That Income Withholding Take Place Immediately:

In cases where the court has not required income withholding take place immediately, but there was an order for support providing for payments of a delinquency, the child support recipient can still serve a notice for income withholding. In such cases the recipient prepares and serves a notice that states that the parties' written agreement providing an alternative arrangement to immediate withholding no longer ensures payment of support. The notice must state the reason that the written agreement no longer assures such payment. The obligor may contest this withholding but the grounds are limited to whether the parties' written agreement providing an alternate arrangement to income withholding continues to ensure payment of support. It is not grounds to contest such withholding that the obligor has made all payments due by the date of the petition.

6. Petitions to Correct Income Withholding Notices:

One important provision of the legislation allows an obligor to petition the court at any time to correct a term contained in an income withholding notice to "conform to that stated in the underlying order for support for (a) the amount of current support; (b) the amount of the arrearage; (c) the periodic amount for payment of the arrearage; (d) the periodic amount for payment of the delinquency."

7. Service of Income Withholding Notices if the Support Order Does Not Contain the Income Withholding Provisions as to Delinquencies, etc:

A significant provision of the new statute is the ability to serve an income withholding notice even in cases where there are existing orders for withholding or there is no order for withholding. §706(I) provides that an income withholding notice may be served on a payor even though the most recent order for support does not contain an income withholding provision with respect to any delinquency and the obligor has accrued a delinquency after entry of the most recent order for support. In this event the obligee prepares and serves a standard income withholding except that the notice contains a periodic amount for the payment of the delinquency equal to 20% of the total of the current support and the amount to be paid periodically for payment of any arrearage stated in the most recent order for support.

8. Additional Information Duties of Income Withholding for Support Act:

While §505 requires the parties to provide certain information to the court.

a. Payor's Information Duties:

§45(a) of the Income Withholding for Support Act requires the obligor to provide the following information:

Each obligor (whether or not income is being withhold) must notify the obligee, any public office and the clerk of the court of any change of address within 7 days. (c).

Each obligor whose income is being withheld shall notify the obligee, the public office and the clerk of the court of any new payor, within 7 days. (d)

b. Obligee's Information Requirements:

The obligee is required to provide information as to the following:

An obligee who is receiving income withholding payments under this Act shall notify the payor, if the obligee receives the payments directly from the payor, or the public office or the Clerk of the Circuit Court, as appropriate, of any change of address within 7 days of such change. (a)

An obligee who is a recipient of public aid shall send a copy of any income withholding notice served by the obligee to the Division of Child Support Enforcement of the Illinois Department of Healthcare and Family Services. (b)

D. Amendments to Income Withholding Provisions Effective August 14, 1998: Public Act 90-790, 750 ILCS 5/706.1.

1. Defined “business day” as a day on which State offices are open for business.

2. Requires all income withholding notices to state the date of entry of the order for support and contain the signature of the obligee.

3. Requires that the proof of service attach a copy of the income withholding notice.

4. Where notice is issued after a delinquency, it eliminates the requirement to contain a computation of the period and the amount of the delinquency.

III.Non-Support Punishment Act (NSPA):

The Non-Support Punishment Act) amends many statutes. I will review the criminal provisions because they can be used as an effective means of “self-help.”

A. Criminal Provisions of Non-Support Punishment Act:

The NSPA generally permits State's Attorneys and Attorney Generals to prosecute for failure to support, except in default orders for support.

Failure to Support Definition: Failure to support is committed when:

1) A person willfully and without lawful excuse fails to provide for support or maintenance of his spouse in need of support or likewise willfully deserts or refuses to provide for his minor children in need of support and the person has the ability to provide for such support; or *

2) A person willfully fails to pay a court or administrative support order for longer than six months or is more than $5,000 in arrears and the person has the ability to pay; or *

3) A person leaves the state with the intent to evade a court/administrative order which has been unpaid for more than 6 months or has accumulated an arrearage greater than $5,000; **

4) A person willfully fails to pay a court or administrative support order for longer than a year or has accumulated an arrearage greater than $20,000 and the person has the ability to pay. **

Rebuttable Presumption: There is a rebuttable presumption that the existence of non-default support order provides the ability to pay.

* First time violation is Class A misdemeanor. 2^nd violation is class 4 felony.

** Class 4 felony.

B. Suspension of Driver's Privileges: Suspension of driver's privileges is an underused vehicle to try to obtain compliance with an arrearage in support. It is addressed in a separate presentation.

The Gitlin Law Firm provides the above information as a public service to other lawyers in order to help improve the overall practice of family law. 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
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401

www.gitlinlawfirm.com

Updated: January 22, 2007