Overview of Child Support in Illinois
In every divorce proceeding involving children, the issue of child support will arise. Child support issues in Illinois are governed by the Illinois Marriage and Dissolution of Marriage Act, which lays out guidlines courts must follow to establish child support payments for minor children, non-minor children, and payment of educational expenses.
How do Courts Typically Calculate Child Support?
Generally speaking, child support is calculated using the Illinois Child Support Guidelines. The guidelines require a non-custodial parent (parent with less custodial time) to pay a minimum percentage of his or her net income, which depends on the number of supported children; the percentage goes up according to the number of children.
Typically, courts order guideline support unless the guidelines fail to address the financial needs of the children. A court may also add certain necessary expenses, such as daycare, to the guideline amount.
For a complete description of how courts in Illinois calculate child support, see Child Support in Illinois, by Susan Bishop.
Can Courts Consider a New Spouse's Income?
The traditional view was that the financial resources of a new spouse were not to be considered in calculating child support. That view took into account the fact that stepparents don't have a legal obligation to support their stepchildren.
However, the law on this issue has developed and evolved as stated in an inmportant Illinois Appellate Court decision, which held that "a trial court may equitably consider the income of a parent's current spouse in determining an appropriate award of child support." In Re the Marriage of Drysch, 34 Ill.App.3d 640 (2000).
The Drysch decision dealt with the obligation of both parents to contribute towards their child's college expenses. In determining the amount and/or percentage each parent was required to pay, the court held that it was appropriate to consider all of the financial resources available to both parents in determining whether they could meet their individual financial needs and still comply with the court's order for contribution towards their child’s educational expenses.
Specifically, the court considered the mother's new spouse's income in determining her ability to meet her own monthly financial obligations. The court evaluated the mother's "financial resources" and determined that her new spouse's significant income was a proper component of "resources" to which she had access.
Surprisingly, the Drysch decision did not specifically limit the consideration of a new spouse's income to the issue of college expenses. Instead, the court opened the door to consider a new spouse's income when calculating the basic child support obligation. However, courts are still required to consider both the guidelines and any other factors that might support a potential deviation from guidelines, such as:
- new or additional children
- the ability to support oneself
- contributions towards health insurance costs and uninsured health expenses
- contributions toward daycare expenses, and
- any other discretionary aspect of the child support component.
Conclusion
The calculation of child support has become quite complex. A simple percentage calculation based only on the guidelines is not necessarily going to provide an appropriate amount of child support in all cases. Courts making child support decisions in Illinois can and do consider a variety of factors, including a new spouse’s income.
If you have questions about child support, you should contact an experienced family law attorney for help.
Resources
For the statutes governing child support in Illinois, see 750 ILCS Sections 5/505, 5/505.1, 5/505.2 and 5/513.
