Illinois Child Support Basics
Illinois' child support law is an inefficient dinosaur of legislation. Last modified in 1985, it fails to take into account changes in the modern labor force. It fails to specifically address the need for day care services for single-parent families. It does not take into account nearly annual tax law changes (as a simple example, some parents receiving child support now also receive thousands of dollars each year in tax credits from the federal government – a circumstance not contemplated when the original awards were made). It does not take into account the amount of time that a child spends with each parent – indeed, under Illinois' current child support law, children may spend most of their time, and consume most of their resources, with one parent, but that parent may still have to pay child support to the other parent. This inefficient law shortchanges children – as well as parents. Each of these shortcomings has been addressed in other states... but Illinois continues to lag far behind.
Unfortunately, our child support law isn't about to change anytime soon. Illinois' legislature takes its lead from the federal government and, until the federal laws are changed, we'll probably have to make do with what we have now. A good attorney, however, may be able to obtain the relief you seek. Precisely because Illinois' child support law is so rigid, literally thousands of cases have cropped up over the years creating inroads and loopholes that may apply to your situation. An attorney who is familiar with those cases can help you address issues not covered by Illinois law (like day care expenses, tax credit consideration, and shared custody consideration).
For most practical purposes, Illinois courts base a non-custodial parent's child support obligation on that parent's "net income."1 Once a parent's net income is determined, the judge is supposed to apply certain guidelines defined in the law to determine the amount of child support. The guidelines are:
|6 or more||50%|
The Guidelines, however, are only “guidelines.” The guidelines are required by the federal government. Any state (like Illinois) that accepts other federal money must have in place some kind of system of guidelines establishing child support obligations. The federal law specifically says that any child support award achieved by application of the guidelines may be rebutted by evidence that the application of the guideline resulted in an incorrect child support award.2
Net Income: "Net income" has proved to be a tricky thing for courts to define in the absence of a definition in the law. The courts are supposed to look only to the child support law, they're not supposed to go by what the IRS considers "income"3 or how your accountant may define "net income" vs. "gross income." The child support courts use only the child support laws and their own definitions.
Net income is supposed to mean "all income from all sources" minus the deductions permitted by Illinois child support law.4 Net income is a flexible concept, though, depending on your judge and the facts of your case. For example, sometimes gifts count as income and sometimes they don't.5 Loans, too, can sometimes count as income6 – in other cases they may be excused and not counted.7 Tax refunds attributable to maintenance payments made to the former spouse are considered income.8Deferred compensation contributions,9 income from investments and bonuses from a closely held corporation,10 income from stocks and bonds,11 and the “capital account” at the obligor’s professional firm12 all have been considered income for purposes of child support. In some circumstances, even the property awarded by the divorce court in the divorce may be considered for child support purposes.13 Income may be reduced by depreciation expenses in some cases14 and not excused in other cases.15
Unemployment compensation, unused per diem travel allowances,16 workmen's compensation payments,17 gambling winnings, severance pay received the year before support was due,18 and disability pensions19 all count as "income" but often are overlooked. Social Security Disability benefits (SSDI) can be considered income, but Supplemental Security Income (SSI) probably should not.20 One time events that generate income – like the sale of a business or real estate – may qualify as income or they may be excluded.21 Even death benefits from a predeceasing spouse have been considered in calculating child support.22 On the other hand, huge personal injury settlements are often times ignored by the courts – at least a big portion of them are usually determined to not be "income" and therefore have no impact on the child support calculation.23
Whether you're paying or receiving child support, be sure to work with a lawyer familiar with the laws, the cases and the child support courts to protect your money.
Unemployment and Imprisonment: Even unemployed and imprisoned parents are required to pay support. Support for prisoners is not necessarily determined by their (minimal) income. A parent who was earning decent wages and is then sent to prison may, or may not, receive a reduction in his or her child support obligation. Support payments can be secured by trusts.24
Termination and Emancipation In Illinois, child support usually ends when a child becomes "emancipated." Illinois law defines emancipation as the child's 18th birthday.25 There are, however, other ways that a child may cross the magical threshold of emancipation -- thereby terminating all child support obligations.26 Be sure to consult a knowledgeable attorney who is familiar with the cases that define emancipation to know whether your child support obligation may be terminated.
Employer’s Duty to Terminate Child Support: A valid child support order should include a date when the support obligation will terminate. If the employer continues to withhold money from the employee’s wages after the termination date, the employee may sue the employer to recover the withheld money and punitive damages.27
In divorces with more than one child, the child support obligation usually should be reduced upon each child's emancipation. Emancipation of a child usually constitutes a "change in circumstances" and, of course, the corresponding reduction can only be accomplished by court order. Parents may not agree outside of court to reduce child support – such agreements are invalid. Only a judge in a court of competent jurisdiction may make the finding that a change in circumstances has, indeed, occurred and order the warranted reduction. Again, be sure to work with a good family law attorney to ensure your child support calculations are handled professionally, accurately, and timely.
Continuation of Child Support Beyond 18th Birthday: Child support ends when kids turn 18 unless the child is still attending high school – in which case support may be extended to the age of 19.28 After that, child support terminates in ALL cases28 unless there is an agreement to the contrary.29 There are ways, however, to have money continue to flow to support children beyond their 19th birthday even if they will not attend college.30 For example, where a child suffers educational and learning disabilities, Illinois law31 permits support to continue beyond the age of majority. If you're facing a situation where support may have to continue after a child's 18th or 19th birthday, talk to one of our lawyers who is familiar with the cases,32 because the courts can consider a great many factors in making such determinations.