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 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.
Chicago divorce lawyer shares case study regarding college education
As a Chicago divorce lawyer I am intimately aware of the fact that Illinois is in the minority of states which allow a divorce court to obligate a parent to pay a child’s expenses attributable to a college education or professional or other training after graduation from high school. (Section 513 of the Illinois Marriage and Dissolution of Marriage Act)
The divorce statute provides that educational expenses may include, but are not limited to, tuition, room and board, 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.
Since the majority of Chicago divorce cases are settled between the parties without the necessity of a trial, the rights and obligations of each party are expressly set out in a contact called a Marital Settlement Agreement. The terms of the parties’ agreement are approved by the court when the divorce is granted.
In the case of In Re The Marriage of Peterson, the parties had entered into a settlement agreement which reserved the issue of each party’s obligation to contribute to the college or other education expenses of the parties’ children pursuant to Section 513 of the divorce statute. The final divorce decree did not specify that each party was obligated to contribute or the amount each was to contribute. The divorce agreement just provided that the issue would be determined at a later date.
The mother filed a lawsuit for college education expenses after the parties’ oldest child had graduated from college and while the two other children were attending college. The mother had already paid the children’s expenses through loans and was seeking reimbursement from the father.
The payment of higher education expenses is considered to be in the nature of child support. The divorce law in Illinois provides that only future obligations to pay child support may be modified. The obligation cannot be retroactively changed.
The Illinois Supreme Court in Peterson said that since the divorce decree reserved the issue of each party’s obligation to pay college education expenses, the mother was, in effect, seeking to enforce an obligation which did not exist. The father did not have an obligation to pay because the divorce decree did not impose an obligation upon him nor had a divorce court. Since child support payments cannot be modified retroactively, the father could not be ordered to pay expenses before any obligation existed. Therefore, the mother’s request for reimbursement was denied.
Had the mother petitioned the divorce court prior to the children’s incurring the college expenses, the issue of whether the father had an obligation to contribute to those education expenses, would have already been determined. It should be noted that, if the divorce court in that case imposed a future obligation upon the father to contribute to the children’s expenses, it could consider the amount of money already expended by the mother in determining how much the father should pay in the future.
If you are considering a divorce in the Chicago area we highly recommend that you consult a Chicago divorce lawyer before you agree to anything. Even the friendliest divorces should have a Chicago divorce attorney representing each party separately. The extra cost of making quality decisions initially will be nominal compared to the potential costs if each party does not have proper guidance in the original process.