These practice area statements are provided by the attorneys from Murphy & Dunn and represent their thoughts on practicing law over the past 36 years in family law. They are not legal advice. They are a general overview of the law, with specific statutes cited for your review, and opinions on how they generally apply in divorce cases in Illinois. Each and every case is different.
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The issues discussed below are extremely complicated and are only a part of the overall statute on child support. We would never suggest any parent go through a divorce or a child support case without getting the best divorce and family law attorney they can afford. It is an extremely complicated statute to follow, even for us experienced family law attorneys. Below is a summary of some of the provisions.
HOW CHILD SUPPORT IS DETERMINED IN ILLINOIS (VARIOUS PROVISIONS)
On July 1, 2017, the child support laws in Illinois were changed from a percentage of income basis being paid by the non-custodial parent to the custodial parent to a support calculation based on a calculation that takes into consideration both parties’ income levels and both parties actual parenting time with the children. It has been a much fairer and more reasonable approach to the support of children in a divorce. The governing statute is Section 505 of the Illinois Marriage and Dissolution of Marriage Act.
Under the new law, both parents have an obligation to support their children. This is true in a new dissolution case filed now or in a case back in court on a modification of child support. This duty of support owed to a child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. Further, child support applies to any child under age 18 and any child age 19 or younger who is still attending high school.
The new law is simpler in some respects, and more difficult in others. There are now worksheets established to determine what each parent’s net income is, what the cost of raising an average child is (now called the Basic Child Support Obligation), and how to calculate the new child support amount. The basic child support obligation is designed to reflect the percentage of combined net income that parents living in the same household in the State of Illinois ordinarily spend on their child or children. In reality, it is an estimate of what the State says you should spend on a child and child support is based on same.
These worksheets and child support guidelines are designed to provide formulas that are consistent throughout the State and from county to county, to make the amount of child support more equitable between the parties, to streamline the child support process since many cases are done without attorneys, and to fairly divide the cost of raising children between the parties based on their actual net incomes and the amount of time spent with each parent by the children. The net result is that child support is more of a formula now and it has been applied more fairly throughout the State. It has also substantially reduced the amount of child support being paid as income levels increase because it is no longer just a percentage of net income.
Under the statute, the Court will determine each parent’s monthly net income, then add the parents’ monthly net incomes together to determine the combined monthly net income of the parents, select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and calculate each parent’s percentage share of the basic child support obligation. The bottom line is that, under a pattern where one parent has primary parenting time, the other parent will pay their pro rate share of the basic child support obligation based on what percent of income each party has to the total. If a parent earns 60% of the total combined gross income, they will generally pay 60% of the basic child support obligation.
There are some exceptions to following the guidelines, but so far we have not seen them applied very often. The Court is generally following the statute. If you do want to make an argument for a deviation, we can. The court must find that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors, including: the financial resources and needs of the child; the financial resources and needs of the parents; the standard of living the child would have enjoyed had the marriage or civil union not been dissolved; and the physical and emotional condition of the child and his or her educational needs. Call our office to discuss this further if you think a deviation is proper. You will not likely win that issue on your own.
Gross Income and Net Income have very definite meanings and can be a complicated calculation. You really do need an attorney whom handles family law to properly represent your interests before the Court if you have fluctuating income, own your own business, have a farming operation, or you are not just a normal “W-2” employee. There is a huge difference having the proper attorney on your side under those circumstances.
The right to claim a child as a tax exemption under the new law is also a tricky situation and there is a difference between what the law states and what often happens in real life practice. The new law provides that, “the party with the majority of parenting time shall be deemed entitled to claim the dependency exemption for the parties’ minor child”. However, in real life practice, that is often not the case. The parties will alternate the right to claim a child or share in the claiming of the children if there are multiple children. This issue alone can be worth thousands of dollars to you each year and is worth seeking expert counsel.
There are many other exceptions and adjustments under the statute. Personally, I do not suggest anyone with a job who has a child support issue to go through the case without a competent divorce attorney. It is very difficult to follow the statute and properly apply the guidelines with all of the adjustments and exceptions.
Unemployment or underemployment is another example of a problem area. If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community. If there is insufficient work history to determine employment potential and probable earnings level, there shall be a rebuttable presumption that the parent’s potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person. Once again, the statute provides this language, but actually applying it in real life in a real case is exceptionally difficult and requires expert counsel.
There is a rebuttable presumption in any judicial or administrative proceeding for child support that the amount of the child support obligation that would result from the application of the child support guidelines is the correct amount of child support. This is a rule that is almost always applied. As stated above, once the Court figures out what it thinks is the proper statutory amount, that is usually what ends up in the Court Order.
There is a rebuttable presumption that a minimum child support obligation of $40 per month, per child, will be entered for an obligor who has actual or imputed gross income at or less than 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person, with a maximum total child support obligation for that obligor of $120 per month to be divided equally among all of the obligor’s children. However, for parents with no gross income, who receive only means-tested assistance, or who cannot work due to a medically proven disability, incarceration, or institutionalization, there is a rebuttable presumption that the $40 per month minimum support order is inapplicable and a zero-dollar order shall be entered.
A court may use its discretion to determine child support if the combined adjusted net income of the parties exceeds the highest level of the schedule of basic child support obligation, except that the basic child support obligation shall not be less than the highest level of combined net income set forth in the schedule of basic child support obligation.
The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable school and extracurricular activity expenses incurred which are intended to enhance the educational, athletic, social, or cultural development of the child.
The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable child care expenses of the child. The child care expenses shall be made payable directly to a party or directly to the child care provider at the time of child care services. “Child care expenses” means actual expenses reasonably necessary to enable a parent or non-parent custodian to be employed, to attend educational or vocational training programs to improve employment opportunities, or to search for employment. “Child care expenses” also includes deposits for securing placement in a child care program, the cost of before and after school care, and camps when school is not in session. A child’s special needs shall be a consideration in determining reasonable child care expenses.
Child care expenses shall be prorated in proportion to each parent’s percentage share of combined net income, and may be added to the basic child support obligation if not paid directly by each parent to the provider of child care services. The obligor’s and obligee’s portion of actual child care expenses shall appear in the support order. If allowed, the value of the federal income tax credit for child care shall be subtracted from the actual cost to determine the net child care costs.
The amount of child care expenses shall be adequate to obtain reasonable and necessary child care. The actual child care expenses shall be used to calculate the child care expenses, if available. When actual child care expenses vary, the actual child care expenses may be averaged over the most recent 12-month period. When a parent is temporarily unemployed or temporarily not attending educational or vocational training programs, future child care expenses shall be based upon prospective expenses to be incurred upon return to employment or educational or vocational training programs.
Shared physical care. If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation. The court shall determine each parent’s share of the shared care child support obligation based on the parent’s percentage share of combined net income. The child support obligation is then computed for each parent by multiplying that parent’s portion of the shared care support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are then offset, with the parent owing more child support paying the difference between the child support amounts. The Illinois Department of Healthcare and Family Services shall promulgate a worksheet to calculate child support in cases in which the parents have shared physical care and use the standardized tax amount to determine net income.
Split physical care. When there is more than one child and each parent has physical care of at least one but not all of the children, the support is calculated by using 2 child support worksheets to determine the support each parent owes the other. The support shall be calculated as follows: Compute the support the first parent would owe to other parent as if the child in his or her care was the only child of the parties; then compute the support the other parent would owe to the first parent as if the child in his or her care were the only child of the parties; then subtract the lesser support obligation from the greater. The parent who owes the greater obligation shall be ordered to pay the difference in support to the other parent, unless the court determines, pursuant to other provisions of this Section, that it should deviate from the guidelines.
A portion of the basic child support obligation is intended to cover basic ordinary out-of-pocket medical expenses. The court, in its discretion, in addition to the basic child support obligation, shall also provide for the child’s current and future medical needs by ordering either or both parents to initiate health insurance coverage for the child through currently effective health insurance policies held by the parent or parents, purchase one or more or all health, dental, or vision insurance policies for the child, or provide for the child’s current and future medical needs through some other manner.
The court, in its discretion, may order either or both parents to contribute to the reasonable health care needs of the child not covered by insurance, including, but not limited to, unreimbursed medical, dental, orthodontic, or vision expenses and any prescription medication for the child not covered under the child’s health insurance.
If neither parent has access to appropriate private health insurance coverage, the court may order one or both parents to provide health insurance coverage at any time it becomes available at a reasonable cost; or the parent or non-parent custodian with primary physical responsibility for the child to apply for public health insurance coverage for the child and require either or both parents to pay a reasonable amount of the cost of health insurance for the child.
The amount to be added to the basic child support obligation shall be the actual amount of the total health insurance premium that is attributable to the child who is the subject of the order. If this amount is not available or cannot be verified, the total cost of the health insurance premium shall be divided by the total number of persons covered by the policy. The cost per person derived from this calculation shall be multiplied by the number of children who are the subject of the order and who are covered under the health insurance policy. This amount shall be added to the basic child support obligation and shall be allocated between the parents in proportion to their respective net incomes.
After the health insurance premium for the child is added to the basic child support obligation and allocated between the parents in proportion to their respective incomes, if the obligor is paying the premium, the amount calculated for the obligee’s share of the health insurance premium for the child shall be deducted from the obligor’s share of the total child support obligation. If the obligee is paying for private health insurance for the child, the child support obligation shall be increased by the obligor’s share of the premium payment.
If dental or vision insurance is included as part of the employer’s medical plan, the coverage shall be maintained for the child. If not included in the employer’s medical plan, adding the dental or vision insurance for the child is at the discretion of the court.
A child support order must include a date of termination. The termination date shall be no earlier than the date the yoiungest child turns 18. However, if the child will not graduate from high school until after age 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 termination date does not apply to any arrearage that may remain unpaid on that date.
As you can see, there are many provisions governing this topic area. These are just some of the provisions in Section 505. Further, each court and county handles matters slightly differently so it is best know ahead of time how the process will work. Please contact our office for more information and Click here to Contact Us to schedule your free initial consultation.