Defending Against Huge, Ancient Arrearages
updated 9 September 2019.
by Wes Cowell
Child support arrearages are not dischargeable in bankruptcy and they earn 9% interest. If you owe an arrearage, the sooner you deal with it the better! It is possible to eliminate or significantly reduce child support arrearages. The task, however, can be herculean — you need to work with a lawyer. Need advice? Call, leave your info, or schedulescheduleschedule a consultation.
Which Legal System?: There are two legal systems that deal with child support: the court system (governed by the divorce laws and parentage laws) and the administrative system (governed by Illinois' Public Aid Code).
The Court System: Cases in the court system start when a parent files a case for divorce or parentage. Child support is addressed as part of that case. The support is owed to the custodial parent and if you build up an arrearage you'll have to cut a deal with that person. Hire a lawyer, buy some flowers and chocolates, and start negotiating. Garnishments against you can max out at 65% of your income and virtually all of your assets can be seized to recover the arrearage.
The Administrative System: The Illinois Department of Healthcare and Family Services (HFS) has a division called the Division of Child Support Services (DCSS). The DCSS operates a free website and an 800 number where single parents can go/call to "put the other parent on child support." They process a HUGE number of cases. The good news is it's free. The bad news is they oftentimes do a pretty bad job: it can be very slow, the numbers are often wrong, they don't really investigate much, and they don't listen to both sides.
The DCSS handles two types of cases: Non-IV-D ("non-four-D") cases and "IV-D" (four-D) cases -- the designation "IV" refers to Title IV of the Social Security Act of 1975, which covers grants to states for the purpose of providing aid and services to needy families with children.
1) Non-IV-D cases: these are cases where a custodial parent accesses the free, online service or 800 number and "puts you on child support." The State's Attorney does all the work for free (you get what you pay for), the child support is withheld from the obligor's paycheck, and paid over to the custodial parent through the S.D.U. In these cases, if you build up an arrearage you'll have to cut a deal with the obligee -- the State has nothing to do with it. Again, hire a lawyer, buy some flowers and chocolates, and start negotiating. Garnishments against you can max out at 65% of your income and virtually all of your assets can be seized to recover the arrearage.
2) IV-D cases: these are cases where a parent ("mom" in nearly all cases) applies for some kind of public assistance (think, SNAP, TANF, etc.). In exchange for the public assistance, she must identify the father and assign to the State her rights to collect child support.
The State then provides taxpayer-funded assistance to the mother and goes after the father to recoup those funds. In other words, the taxpayers support mother and child when they heed assistance and then go after the father to recoup the money paid out in support. Once the State gets the obligor's financial information, the support is withheld but is not paid to the parent, it instead goes to the State for the recoupment. If there is any left over, the State turns that amount over to the mother.
Burden of Proof for Arrearage: An obligor fighting an arrearage claim on the defense that he has (partly) paid the obligation bears the burden of proving the extent of all payments. In re: Marriage of Jorczak, 315 Ill. App. 3d 954, 735 N.E.2d 182 (2000). You cannot argue that the recipient shouldn't be able to collect because the recipient didn't keep good enough records. The obligor (the one paying child support) is responsible for maintaining proof of payment. In re: Marriage of Smith, 347 Ill.App. 3d 399 (2004).
Project Clean Slate: The Illinois Department of Healthcare and Family Services offers reductions in amounts owed to the State of Illinois (not the custodial parent). The program does NOT reduce future support payments, only past arrearages. The offer may apply in cases where the obligor was unemployed, incarcerated, or was seriously ill. You must prove that you currently have the ability to pay (i.e., you have a job). For a Clean Slate program application or more information call the regional child support office location nearest you.
Equitable Estoppel: Equitable estoppel applies when a person, by his or her statements or conduct, induces another to rely, to his or her detriment, on the statements or conduct of the first person. The party asserting estoppel must have relied upon the other person's acts or representations and have had no knowledge or convenient means of knowing the facts, and such reliance must have been reasonable. See, In re: Marriage of Jungkans, 364 Ill.App.3d 582, 847 N.E.2d 141 (2d Dist., 2006). See, also, In re: Marriage of Smith, 347 Ill.App. 3d 399 (2004).
No Statute of Limitations -- The Saputo Doctirine: A little background: Illinois law limits enforcement of all judgments to 7 years. 735 ILCS 5/12-108(a). After 7 years, a plaintiff must first "revive" the judgment before enforcing it. A "revival" must be commenced within 20 years of the judgment's rendering. 735 ILCS 5/13-218. If a judgment is not revived within 20 years, it dies. Prior to 1 July 1997, those rules applied to judgments for past-due child support, too. Any child support judgments that came due prior to 07/01/1977 could not be enforced after 20 years due to the "judgments-die-after-20-years" rule under the old 735 ILCS 5/12-108(a) and 735 ILCS 5/13-218.
The law was amended 1 July 1997, however, and child support enforcement actions now have no statute of limitations. Since 1 July 1997, the law says:
Sec. 12-108. Limitation on enforcement.
(a) Except as herein provided, no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by Section 2-1601 of this Act . . . . Child support judgments, including those arising by operation of law, may be enforced at any time.
In re: Marriage of Saputo: Caroline and Louis Saputo divorced in 1966 after eight years in a marriage that produced four children. Caroline was awarded custody and Louis was ordered to pay $30 / week for child support and maintenance. Louis paid nothing. In 2004, Caroline sought to collect $375,000 for child support plus interest. In re Marriage of Saputo, 845 N.E.2d 901 (Ill. App., 2006).
When Louis received Caroline's collection notice, he defended himself with the "judgments-die-after-20-years" rule." Their youngest child emancipated in September 1982. By Louis's reasoning, Caroline's right to collect died 20 years later, in September 2002. Because she waited until 2004, he argued, she was out of luck.
The trial court agreed with Louis, but the appellate court agreed with Caroline. The appellate sent the case back to the trial court to those weekly payments that were less than 20 years old on 1 July 1997 when the "no-statute-of-limitations" rule went into effect. Louis was on the hook for all those payments that accrued from July 1977 through September 1982.
Laches: "Laches" is the "use-it-or-lose-it" rule for judgment enforcement. It says that, under some circumstances, a party shouldn't be allowed to enforce a judgment because he or she has waited too long and done nothing about it. There used to be cases that said a child support obligation couldn't be enforced if the recipient just let it lie dormant for too long. Then, the statute of limitations changed from 20 years to unlimited and the defense of laches was effectively abolished in child support claims.
In re: Marriage of Smith, 347 Ill.App.3d 395, 282 Ill.Dec. 430, 806 N.E.2d 727 (2004): William and Sharon Smith divorced in 1983. In 2001 Sharon obtained a judgment for $60,000 for unpaid child support. William appealed arguing a few defenses, including laches. In affirming the trial court's judgment, the Second District Appellate Court said:
Laches is an equitable doctrine that precludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party. The doctrine is grounded in the equitable notion that courts are reluctant to come to the aid of a party who has knowingly slept on his rights to the detriment of the opposing party. In re Marriage of Kramer, 253 Ill.App.3d 923, 932-33, 192 Ill.Dec. 653, 625 N.E.2d 808 (4th Dist., 1993). The party citing laches as a defense to a claim must prove two elements: (1) lack of diligence by the party asserting the claim and (2) injury or prejudice to the opposing party resulting from the delay. Kramer, 253 Ill.App.3d at 933, 192 Ill.Dec. 653, 625 N.E.2d 808.
When fixing the period in which rights and claims would be barred by laches, equity follows the law, and courts of equity adopt the period of limitations fixed by statute. Thus, when a claim or right is not barred by a limitations period, laches will not apply unless special circumstances make it inequitable to grant the relief requested. Kramer, 253 Ill. App.3d at 933, 192 Ill.Dec. 653, 625 N.E.2d 808. Application of the doctrine of laches lies within the sound discretion of the trial court, and this court will not disturb its decision absent an abuse of discretion. Kramer, 253 Ill.App.3d at 933, 192 Ill.Dec. 653, 625 N.E.2d 808.
In re: Marriage of Smith, 347 Ill.App.3d 395, 282 Ill.Dec. 430, 806 N.E.2d 727 (Second Dist., 2004)