Illinois Child Support FAQ's

1) Under what circumstances can a court require payment of child support? The duty to support includes both parents of a child in any of the following proceedings: * dissolution of marriage and post-decree proceedings * legal separation * declaration of invalidity of marriage * custody * Parentage Act (paternity) * Illinois Domestic Violence Act * Children and Family Services Act to the DCFS or a licensed and approved child care facility when children are accepted for care and training or through a voluntary placement agreement. 2) Who has the duty to pay child support? Both parents have a duty to pay reasonable and necessary support to provide for the reasonable and necessary physical, mental and emotional health needs of the minor children, as well as for adult children who continue to require parental support, and children who are mentally or physically disabled or attending school. of the child. Neglect or refusal "without any lawful excuse" to support or maintain child under the age of 18 years, or a needy spouse, is a Class A misdemeanor and creates civil liability in the non-supporter for the amount of any public assistance provided the spouse or child. 3) Can a court order an employer to deduct child support from the supporting parent's salary and pay it directly to the receiving parent? Definitely -- so long as the supporting parent is employed at a job. This works extremely well. However, if the supporting parent is self-employed, much of his or her income is in cash tips or payments, or is on a straight commission without a draw, this device will not be helpful. 4) May a supporting parent be ordered to pay child support through the court? Definitely. In an effort to require non-custodial parents to pay their child support, and to relieve the taxpayers of the burden of welfare payments to children of "deadbeats," each state must have an agency for collection and disbursal of child support. Payment to the court simplifies the process for the custodial parent, who need not enter into confrontations with the supporting parent or use the children as support collection agents. The court maintains the record of payment, and when an arrearage occurs, enforcement through the States Attorney's office should follow automatically. 5) When does child support terminate? Unless the parties otherwise agree, emancipation of a child terminates the child support obligation, but the termination is not automatic, and the duty to support continues unless and until an order is entered by the court. 6) May child support continue after a child reaches the age of majority (18)? Yes. In Illinois, adult children (over the age of 18) have the right to continued support for education, to finish high school and attend college or trade school, or if they suffer some impairment as a result of which they cannot support themselves. In the matter of a college education and post-childhood support, children of divorce have greater rights than those of in-tact families. 7) When will a parent be ordered to pay support for a child over 18 years of age? Both parents, or in the event of a parent's death, the estate of the parent, are responsible for the support of children over age 18 years when: * the child is mentally or physically disabled and not otherwise emancipated * the child is attending high school, or post-secondary college, professional or other training after graduation from high school. Educational expenses may include, but are not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit. 8) What factors does the court consider in awarding post-majority support? The court is required to consider all relevant factors that appear reasonable and necessary, including: * the financial resources of both parents * the standard of living the child would have enjoyed had the marriage not been dissolved * the financial resources of the child. 9) What is emancipation? Emancipation generally occurs when the child reaches majority and has completed his or her education, marries, is self-supporting living on his or her own, or joins the military. 10) Does child support terminate upon a child's death or institutionalization? It may, but a supporting parent may not unilaterally end or modify support without a court order. 11) Does death of a parent terminate support? No. The support obligation may be enforced against the parent's estate, or modified, revoked or commuted to a lump sum payment. How much child support is likely to be awarded? Child support awards are to be determined by accommodating the needs of the child with the available means of the parents, the priority and paramount concern being not the convenience of the parents, but the support of minor children. The Illinois legislature has enacted the following guidelines for minimum support: Number of Children Percent of Supporting Party's Net Income 1 20% 2 25% 3 32% 4 40% 5 45% 6 or more 50% 12) May the support order be stated in terms of the percentage, and thus vary as the paying parent's income varies? No. The statute requires that the amount be calculated based upon the guidelines and other factors, but the support order must be for a definite dollar amount. This causes problems when the supporting parent is self-employed, or his or her income is variable, but since a child support is a judgment, and to facilitate collection and enforcement by state authorities, the legislature has determined that a percentage order will not be valid. 13) What happens when the non-custodial parent's income cannot be ascertained? Where it is impossible to ascertain a parent's net income because of unemployment, default or any other reason, support is to be ordered in an amount considered reasonable in the particular case. 14) Must the court always follow the guidelines, or may special circumstances result in higher or lower than guideline awards? A court may deviate above or below these guidelines based upon the best interests of the child be considered in light of evidence including but not limited to the following relevant factors: 1. the financial resources of the child; 2. the financial resources and needs of the custodial parent; 3. the standard of living the child would have enjoyed had the marriage not been dissolved; 4. the physical and emotional condition of the child, and his educational needs; and 5. the financial resources and needs of the non-custodial parent. A court may deviate below the guidelines only upon entering specific findings to justify the lower amount. No specific findings are needed to deviate above the guidelines, but in practice, the courts generally state their reasons, which usually have to do with the children's special needs or the condition of the custodial parent. 15) How does the court determine a parent's income for child support purposes? "Net income" for child support purposes is defined as the total of all income from all sources, minus the following deductions: 1. Federal income tax (properly calculated withholding or estimated payments) 2. State income tax (properly calculated withholding or estimated payments) 3. Social Security (FICA payments) 4. Mandatory retirement contributions required by law or as a condition of employment 5. Union dues 6. Dependent and individual health/hospitalization insurance premiums 7. Prior obligations of support or maintenance actually paid pursuant to a court order 8. 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. 9. That portion of the health insurance premiums for which the supporting party is responsible. 16) May a parent be required to provide support in addition to the guideline amounts? Additional support in the manner of housing or other direct payments may also be ordered, such as payment of the children's medical, dental and hospital expenses, a health insurance premium and contingent medical expenses not covered by such insurance, private school tuition, or fees to meet the child's special needs. Where the child has special needs, or the income and earning capacity of the payee parent are such that a guideline award will not produce an adequate level of support, an upward deviation is not only permitted, but expected. (N.B., the guidelines are expressly described as minimum.) 17) When a supporting parent is unemployed, does the court have any power to require him or her to work and pay child support? Yes. When the person owing a duty of support is unemployed, the court may order him or her to seek employment and report periodically with a diary of efforts to find work and to participate in government job search, training or work programs. 18) What if the custodial parent has a much higher income than the non-custodial parent? Where the relative economic circumstances of the parties indicate, the custodial parent may be left with the entire child support obligation, or a part-time custodian or non-custodial parent may be awarded child support from the custodian to enable proper care of the children while the children are in his or her care. 19) What if the supporting parent is very wealthy or earns a very large income? Child support is not limited to the "shown needs" of the child. The family's lifestyle is also a factor to be considered, and where the factors warrant, the trial court may award support in excess of the bare needs of the child and the guidelines. The condition of the custodial parent will also be considered, but the source of his or her income, such as public aid, will not ordinarily impact on the amount the contributing parent is expected to pay. 20) May a parent be required to maintain life insurance to assure support for the children in the event of his or her death? Yes. 21) What impact does a parent's remarriage, or having other children, have on child support? Children are not to be penalized for circumstances or living arrangements over which they have no control. Child support may not be reduced below the statutory minimum based solely on the fact that the custodial parent supports other persons not entitled to support by the noncustodial parent, or the custodial parent is receiving welfare. The situation becomes complicated when the custodial parent has other children in addition to the current respondent's child to support. In such event, the child's need is one relevant factor in determining support, along with other relevant factors, including the social problems surrounding one sibling having more than others, the visitation (or relationship) with noncustodial parent, and the extent to which payments by the respondent parent actually benefit those who are not directly entitled to the support benefit. The court will consider all relevant facts in an effort to provide support for all of the children, but there is a sort of "rule of thumb" that the first family ought not be deprived to meet the needs of the second family. 22) Can a parent get out of paying past-due child support? Theoretically, no. The right to receive a child support payment becomes vested when the payment is due, and the receiving parent has an absolute right to the payment as ordered, irrespective of circumstances or conditions. The court is without power to enter any order with respect to a payment already due other than to enforce it. 23) Can the child petition the court to enforce or collect past-due support? No. Only the receiving parent may do so. While child support is for the benefit of the child, the right to receive child support and enforce payment is that of the receiving parent, not the child. The child has no standing to compel a parent to pay arrearages in child support. 24) What if the supporting parent is ill and can't work, or loses his or her job? Because child support is vested in the receiving parent immediately when it becomes due, it is essential that a supporting parent immediately seek court intervention in the event of job loss or other situation adversely impacting on ability to pay support. Until a petition to modify or abate child support is filed in court, child support arrearages will accumulate which the court will not have power to erase. After filing of a proper petition, the court has power to abate or reduce the child support on the basis of a change of circumstance. 25) Once child support has been ordered, can it be modified? Child support is always modifiable if a material change in the circumstances of the child or parent occurs, but only upon filing of a petition in court to modify, and only as to installments accruing after notification to the nonmoving party. Parents may not unilaterally modify child support by agreement without court approval. 26) What is the criterion for modification of child support? An order for child support will be modified only upon a showing that a substantial change in circumstances has created an imbalance between the child's needs and the parent's support capabilities. 27) Can parents agree to self-adjusting or automatic modification of child support? Self-adjusting child support awards increasing automatically with the child's age are not allowed in Illinois on the theory that changes in the factors relevant to a child support award cannot be anticipated with accuracy. 28) What must a petitioner prove to get an increase in child support? The party petitioning for an increase in child support is required to show both that the supporting parent has an increased ability to pay and the child receiving support has increased needs. 29) What events might trigger a reduction of child support? A decrease in income of the supporting parent is the most common basis for a petition to decrease child support. A parent's increased needs, such as an illness requiring a greater percentage of his or her income to meet legitimate health expenses might also support a petition for decrease. 30) Will the supporting parent's remarriage or new children result in a decrease? Generally, no. A court may consider additional expenses resulting to the supporting parent who remarries, although undertaking new family obligations does not lessen the duty of a parent to provide for his or her family by a previous marriage. Where a supporting parent has not remarried but is cohabiting, expenses relating to the live-in companion and his or her children are not to be considered in fixing support obligation to the children of a former marriage. 31) If the supporting parent voluntarily takes a cut in income, can he or she get a reduction in child support? Maybe. A supporting parent's voluntary change in occupation or employment made in good faith may warrant modification of maintenance or child support. Involuntary loss of the parent's employment not brought about by deliberate conduct with an intent to evade the child support obligation constitutes a material change in circumstances. 32) Does the supporting parent's retirement justify a decrease? It depends upon the circumstances of the individual case, including the age, health status, motives and timing for the retirement, and ability to pay. Federal benefits, such as military retirement and disability payments, are subject to legal process to enforce child support obligations. 33) Will a supporting parent's decrease in income always result in a decrease of child support? No. The supporting parent's income is only one factor which the court will consider in reducing child support. The court will look at all the circumstances, including the child's current needs, the ability of the custodial parent to support, and all resources the supporting parent can use for supporting the child. Temporary abatement of child support due to a current inability and future expectation of ability to pay may be approved. 34) What factors could trigger a child support increase? An increase in the child's needs, coupled with a showing that the supporting parent is able to pay, is a basis for an increase in support. Increase in needs can be shown by actual evidence of costs associated with the child's care and education, and can be presumed simply on the basis that the child has grown older and the cost of living has risen. 35) Does an increase in the supporting parent's income always require an increase in child support? A substantial increase in the supporting parent's ability to pay will support a petition for increase on the basis that the child is entitled to live a lifestyle as close as possible to that which he or she would have enjoyed if the parents had not divorced. 36) Will the income or wealth of a parent's new spouse be considered in determining child support? Remarriage or increased earnings of the custodial parent does not automatically result in a reduction of child support. A stepparent usually has no duty to support stepchildren, at least so long as the natural parents have that obligation. However, because couples are likely to pool their resources, thereby possibly increasing the resources available to the supporting parent, the employment or income status of the supporting parent's new spouse is relevant to the issue of the parent's "available means" where marriage to a spouse earning a substantial income results in the parent having more disposable income available since remarriage. 37) What is the procedure for child support modification or termination? A parent wishing to modify or terminate support must file a petition in court alleging that a material change in circumstances has occurred which, by law, entitled him or her to the relief sought. Both parents will be required to produce affidavits and documentation as to their incomes and expenses. If the parties cannot agree on a modification, an evidentiary hearing, tantamount to a full trial, will be held with testimony and other evidence.