How A Divorce Court in Illinois Determines Child Support
Section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act specifies certain minimum guidelines which a divorce court is mandated to use in determining child support. Those guidelines set a percentage of the non-residential parent’s “ net income”: 20% for one (1) child; 28% for two (2) children; 32% for three(3) children; 40% for four(4) children; 45% for five (5) children; and 50% for six(6) or more children.
The divorce statute defines “net income” as “the total of all income from all sources, minus the following deductions:
(a) Federal income tax payments (properly calculated withholding or estimated tax payments);
(b) State income tax (properly calculated withholding or estimated tax 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 determination of such payment period.”
These guidelines are customarily applied by courts in divorce cases. However, Illinois law allows divorce courts the ability to deviate from these guidelines, if the facts of a specific case warrant it. That is why it is important to choose a divorce attorney that is familiar with Illinois divorce laws.Some examples where there have been adjustments are: where one or both parents have an extraordinarily high income; one parent is unemployed; a child has special needs of a child; or there is a split custody arrangement. Having said this, whether there is a downward or upward deviation is made on a case by case basis and there is no hard and fast rule.
By way of example, in the case of In ReThe Marriage of Bush, 191 Ill. App. 3d 249, 547 N.E.2d 590, 138 Ill.Dec. 423 (4th Dist. 1989), the 20% amount of child support for a four-year- old child was $30,000.00 per year. The divorce court found this amount excessive because it was disproportionate to the actual needs of the child. The purpose of child support is not to result in a windfall to the custodial parent.
Another example is the case of In Re InThe Marriage of Keown, 225 Ill. App. 3d 808, 587 N.E. 2d 644, 167 Ill. Dec 375 (4th Dist. 1992). In that case, the split custody arrangement consisted of one child living with the mother and the two other children living with the father. The trial court stated that that there need not be a strict mathematical application of the guidelines where there is split custody of the children. This decision was affirmed by the Illinois Appellate Court.
As your Chicago based divorce lawyer I will help you traverse these complex laws to insure your assets and responsibilities are fairly allocated.
Chicago Divorce Attorney Fees
Section 508 of the Illinois Marriage and Dissolution of Marriage Act allows a party of a Chicago divorce without financial resources an “advance” of money to pay his or her divorce attorneys’ fees as the case proceeds, to allow that person to effectively participate in the divorce case. The purpose of the statute is to “Level the Playing Field”. It is within a court’s discretion to determine how much is advanced. In doing so, the court takes into consideration various relevant factors including how much the other spouse’s attorney has been paid, the complexity of the case, and which divorce litigant controls the financial information.
Attorneys fees are primarily the responsibility of the party incurring them. Nevertheless, at the end of the divorce case, either party has the right to ask the court to allocate the attorneys fees between them. The court does this at the same time it determines the division of property and debt, and any award of support. The party seeking the fees must show an inability to pay the fees and that the other spouse has the ability or, in some cases, a greater ability to pay them.
Chicago divorce attorney notes case study on child support
As a Chicago divorce attorney I am frequently asked questions regarding child support issues. The Chicago family law governing divorce cases, the Illinois Marriage and Dissolution of Marriage Act, provides that a parent must pay child support from “all income from all sources”. Income is generally thought of as salary, other compensation from employment, interest, dividends, monies from partnership entities, perquisites, and the like.
In In Re the Marriage of McGrath, a case decided in 2011, a Court used the regular withdrawals from an unemployed father’s IRA account as “income” for purposes of child support. In the McGrath case, the father was unemployed at the time of the divorce and the issue of child support was reserved. Nearly one year after the divorce, the father was still unemployed. He had been withdrawing $8,500.00 each month since the divorce to pay his own living expenses. When the mother petitioned the divorce court for child support, the court considered the $8,500.00 per month as income to the unemployed father, and awarded child support based upon the IRA withdrawals. The father argued that the IRA account did not constitute income because the money in the account was no different than a savings account, i.e. the money was already there. Also, the father had been awarded his IRA account as part of his property settlement in the divorce.
The Appellate Court affirmed the trial Court’s decision, saying that a trial court has the discretion in the appropriate case to order child support based on regularly liquidated assets to fund expenses. Therefore, the money withdrawn by the father from his savings account was properly considered income for the purpose of awarding child support in a divorce case.
This case study exposes how Chicago divorce can be a complex situation and highlights how hiring the right Chicago family law attorney can help you avoid potential problems.