Deviation from Child Support
by Wes Cowell; updated 11 April 2017 -- suggest a correction
The percentage guidelines for Illinois child supportare only guidelines — courts deviate from the guidelinesall the time as long as there is a good reason for doing so. Need advice? Call, leave your info, or scheduleschedule a consult.
Background: The percentage guidelines in Illinois law (750 ILCS 5/505(a)(1)) are mandated by federal law and are based on a lot of research into the expenditures families make for, and the cost of, rearing children. See, 45 C.F.R. 300, et seq. Not every family fits into the statistical pattern, however, so Illinois law gives judges the leeway to deviate from the guidelines when circumstances warrant. The law says the guidelines must be used unless the court finds a reason for deviating from the guidelines:
(2) The above guidelines shall be applied in each case unless the court finds that a deviation from the guidelines is appropriate after considering the best interest of the child in light of the evidence . . . .
In the granddaddy of all "deviation" cases William Blaisdell argued his assumption that under Section 505(a), courts are mandated to follow literally the schedule for child support. The Illinois Appellate Court handed him a quick loss, saying:
"If this reading is correct, the function of the court is reduced to that of a computer or robot. In this case, the sole function of the court would be to determine the net income of the noncustodial parent, determine the number of children, and calculate the amount of child support by applying the percentage of net income stated in the schedule. However, respondent has failed to show that the statute can or should be read to effectively prohibit judicial discretion."
Boris v. Blaisdell, 142 Ill.App.3d 1034, 97 Ill.Dec. 186, 492 N.E.2d 622, (Ill. App. 1 Dist., 1986).
Blaisdell is a good "lawyer's case" in part because it became a battle of titans -- William had an amicus breif filed by "Men International, Inc.," and his former wife had one filed by the Women's Legal Defense Fund out of Washington, DC. -- but also because it lays out the legislative history of Illinois' child support laws and includes bits of legislative testimony and explains the pre-legislative de facto guidelines used by local circuit courts.
Any deviation must serve the "best interest of the child," must be supported by one or more of the law's proscribed "deviation factors," and must be spelled out in detail in the resulting child support order.
That means first we must calculate what child support would be using the guidelines and then we may argue about whether the support award should deviate upwards or downwards (those are the terms lawyers and judges use: "upward deviations" and "downward deviations") from the guidelines.
The Illinois Appellate Court has said "[T]he trial court cannot blindly apply the statutory guidelines. Where the relevant factors call for variance from the guidelines, variances should be made." In re: Marriage of Carnes and Dressen, 215 Ill.App.3d 166, 574 N.E.2d 845, 158 Ill.Dec. 732) (4th Dist., 1991), citing In re: Marriage of Tatham, 173 Ill.App.3d 1072, 1093, 123 Ill.Dec. 576, 588, 527 N.E.2d 1351, 1363 (5th Dist.,1988).
If you agree to a deviation from the guidelines, you still must convince the judge that the deviation is warranted. Judges nix such agreements all the time.
The Statutory Factors: Illinois' child support law (750 ILCS 5/505(a)(2)) lays out six factors that the court may consider when weighing whether to allow a support award that deviates from the statutory guidelines. The list is not exclusive; that is, the law means "including but not limited to . . . ." The six factors are:
(a) the financial resources and needs of the child: Children sometimes receive Social Security or other benefits and sometimes are the beneficiaries of inheritances and bequests. In In re: Marriage of Newberry, 346 Ill.App.3d 556, 805 N.E.2d 640 (3d Dist., 2004), the couple had two biological children and three adopted children. They received State subsidies for the three adopted children. The mother obtained custody upon the divorce and received the monthly $1700 State subsidy. The mother sought 45% of father net income as child support for five children. The appellate court affirmed the award of only 25% – for the two biological children of the parties – reasoning that the mother already received adequate support for the three adopted children.
(b) the financial resources and needs of the parents: Sometimes application of the percentage guidelines results in an award that would be unfair to the obligor (the parent paying support), insufficient to the recipient, or a windfall to the recipient.
The needs of the obligor: This factor comes into play mostly when a husband fathers a child outside the marriage. Consider the case where a husband has a wife and three kids and then fathers a child with a woman not his wife. The child support calculation for that child born outside the marriage would result in a 20% child support award. That would severely impact the children born to the marriage. This factor allows the court to deviate from the statutory percentage guidelines to work fairness for all of the parties, including the children. See my article: New Family / Second Divorce
Recipient's Windfall / Affluent Parents / The Prodigious Non-Custodial Parent: In determining child support the "utility of the statutory guidelines decreases as incomes of the parties increase." Department of Public Aid ex rel. Nale v. Nale, 294 Ill.App.3d 747, 754, 229 Ill.Dec. 5, 10, 690 N.E.2d 1052, 1057 ($th Dist., 1998). A reduction in child support from the guidelines is warranted where the guideline support amount would result in a windfall to the receiving parent. In re: Marriage of Ackerley, 333 Ill.App.3d 382, 775 N.E.2d 1045 (2d Dist., 2002). Marriage of Bush v. Turner, 191 Ill.App.3d 249, 138 Ill.Dec. 423, 547 N.E.2d 590 (4th Dist., 1989). When an award based on the guidelines seems far in excess of the reasonable needs of the child, variance from the guidelines is warranted. Marriage of Bush v. Turner, 191 Ill.App.3d 249, 138 Ill.Dec. 423, 547 N.E.2d 590 (4th Dist., 1989), In re: Marriage of Lee, 246 Ill.App.3d 628, 186 Ill.Dec. 257, 615 N.E.2d 1314 (4th Dist., 1993).
In re: Marriage of Scafuri, 203 Ill.App.3d 385, 149 Ill.Dec. 124, 561 N.E.2d 402 (2d Dist., 1990) is the seminal case dealing with high-income parents. The Second District Appellate court said:
One commentator has expressed the view that the support schedules contained in the statute have less utility as the net income of the parties increases because the schedules are premised upon percentages related to average child-rearing expenses. (See K. Levin, The Use (and Abuse) of Child Support Schedules in Illinois, 71 Ill.B.J. 314 (1983).) We agree with this assessment. When dealing with above-average incomes, the specific facts of each case become more critical in determining whether the guidelines should be adhered to.
. . .
While we cannot be certain from this passage that the court intended a portion of the child support award to be ersatz maintenance for Pamela, we note that any such practice would be improper. Child support is for the support of the children, and maintenance is for the support of the spouse. While the two concepts are related, one should not be substituted for the other.
In re: Marriage of Scafuri, 203 Ill.App.3d 385, 392-93 149 Ill.Dec. 124, 128-29, 561 N.E.2d 402, 406-07 (2d Dist., 1990).
(c) the standard of living the child would have enjoyed had the marriage not been dissolved: Also referred to as "Lifestyle Factor" it comes into play most often in cases with a non-custodial, high-income parent (think, professional athlete). On the one hand, application of the percentage guidelines would result in a bare windfall for the custodial parent far in excess of the needs of the child. On the other hand, the court should consider the lifestyle the child would have enjoyed had the marriage not dissolved.
A deviation in child support from the guidelines is warranted where the guideline support amount would result in a windfall to the receiving parent. On the other hand, child support is not limited merely to the needs of the child and the court may consider the standard of living that the child would have enjoyed had the parents not divorced. In re: Marriage of Bussey, 108 Ill.2d 286, 91 Ill.Dec.594, 483 N.E.2d 1229 (1995) (“. . . children are not expected to live in a minimum level of comfort while the non-custodial parent is living a life of luxury”), In re: Marriage of Singletary, 293 Ill.App.3d 25, 227 Ill.Dec. 598, 687 N.E.2d 1080 (1st Dist., 1997); In re: Marriage of Osborne, 206 Ill.App.3d 588, 151 Ill.Dec. 663, 564 N.E.2d 1325 (5th Dist., 1990).
(d) the physical, mental, and emotional needs of the child: Illness, developmental delays, disabilities, and other factors make some kids' needs more costly than others. In such cases the court may deviate from the statutory percentage guidelines
(d-5) the educational needs of the child: Sometimes parents agree to send kids to private school and to have the obligor pay the tuition and other expenses and, in consideration of those payments, the obligor receives a downward deviation from the percentage guideline award. There are also cases where a child needs extra help and attention and the educational expenses are greater. Illinois judges are specifically authorized to consider these costs and payments and to deviate from the percentage guidelines.
The Prodigious Custodial Parent: The court may consider the situation where a custodial parent with a relatively large income would receive an amount of support from the non-custodial parent that would result in a financial unfairness for the children. In In re: Marriage of Berberet, 2012 IL App (4th) 110749, 362 Ill.Dec. 869, 974 N.E.2d 417, the percentage guideline child support award from father to mother would have left the father with less than half of the monthly income realized by the mother. That would have negatively impacted his relationship with the kids and that would not be in the children's best interest. Thus, the downward deviation was allowed.
Robust Parnting Schedule: See my article: Robust Parenting Schedule Lowers Support.
Specific Findings Required: The Illinois child support law says
(2) The above guidelines shall be applied in each case unless the court finds that a deviation from the guidelines is appropriate after considering the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors:
(a) the financial resources and needs of the child;
(b) the financial resources and needs of the parents;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical, mental, and emotional needs of the child; and
(d-5) the educational needs of the child.
If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.
Failure to include specific findings justifying a deviation from the guidelines warrants reversal. In re: Marriage of Charles, 284 Ill. App. 3d 339, 672 N.E.2d 57, 219 Ill.Dec. 742, (4th Dist., 1996). If findings are left out, or if your findings lack specificity, the order is susceptible to being vacated if a motion is timely filed or reversed if an appeal is filed.
Court Not Required to Make Specific Findings on Each Factor: In In re: Marriage of Melamed (2016 IL App (1st) 141453) the court deviated from guidelines (from $400 to $5,912 / month) and made specific findings supporting its decision. THe court, however, did not not make a specific finding on EACH factor. The obligor appealed arguing that hte ruling was fatally deficient. The appellate court, affirming, said:
Noticeably, when deviating from the guidelines, the word "shall" is absent from the factors the trial court considers. The lack of the word "shall" here, while present in other parts of subsections (a)(1) and (a)(2) indicates that the legislature does not specifically require the court to consider each factor located at subsections (a)(2)(a) to (e) when determining the best interest of the child. 750 ILCS 5/505(a)(2)(a)-(e) (West 2012).
In In re: Marriage of Melamed (2016 IL App (1st) 141453 @ P34)
Split Custody: In cases of "split custody" (one child lives with Mom and one with Dad), Illinois precedent suggests that the court may disregard the guidelines entirely. "In split custody cases a trial court may disregard the statutory guidelines in the Act and may instead consider the factors in section 505 of the Act." In re: Marriage of Steadman, 283 Ill.App.3d 703, 708 , 670 N.E.2d 1146, 1150 (3d Dist., 1996). "A strict mathematical application of the guidelines where there is split custody of the children is not contemplated by the Statute." In re: Marriage of Keown, 225 Ill.App. 3d at 812, 167 Ill.Dec. at 378, 587 N.E.2d at 647.
Burden of Proof: The party seeking the deviation -- whether up or down -- bears the burden of proving that the deviation is warranted. In re: Marriage of Maczko, 263 Ill. App. 3d 991, 636 N.E.2d 559, 201 Ill. Dec. 127 (1st. Dist., 1992); In re: Marriage of Olsen, 223 Ill. App. 3d 636, 585 N.E.2d 1082, 166 Ill. Dec. 60 (2d Dist., 1990); In re: Marriage of DeGironomo, 206 Ill. App. 3d 1019, 565 N.E.2d 189, 151 Ill. Dec. 918 (1990), citing Ivany v. Granoff, 171 Ill. App. 3d, 411, 526 N.E.2d 189, 122 Ill. Dec. 49 (1988).
Standard of Proof: To win a deviation from the guidelines, the movant must present the court with compelling evidence justifying the deviation.
Section 505 of the Act creates a rebuttable presumption the specified percentage of a noncustodial parent's income represents an appropriate child support award. (citation omitted) See, In re Marriage of Charles, 284 Ill.App.3d 339, 346-47, 219 Ill.Dec. 742, 672 N.E.2d 57, 63 (4th Dist., 1996). This presumption cannot be negated unless compelling evidence shows reason for the deviation.
In re: Marriage of Demattia, 302 Ill.App.3d 390, 235 Ill.Dec. 807, 706 N.E.2d 67 (Ill. App. 4 Dist., 1999), citing In re Marriage of Stanley, 279 Ill.App.3d 1083 1085, 216 Ill.Dec. 890, 666 N.E.2d 340, 341 (4th 1996)
"Compelling reasons must be presented to overcome the presumption that child support guidelines will be applied."
Department of Public Aid ex rel. Nale v. Nale, 294 Ill. App. 3d. 747, 690 N.E.2d 1052 229 Ill. Dec. 5 (1998)
Ignore those pre-1992 cases for "Upward Deviations:" The percentage guidelines set the minimum amount of support. The court may deviate downward from the guidelines but it must make specific findings as to the reason for doing so. It used to be that the guidelines could be exceeded without specific findings or by agreement of the parties -- you'll find plenty of cases out there from the 80's and early 90's that say that, but that sentence of the law was changed in 1992. The old law:
"If the court orders a lower award, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, it shall make express findings as to its reason for doing so. The guidelines may be exceeded by the court without express findings, or by agreement of the parties." or by agreement of the parties." Ill.Rev.Stat.1987, ch. 40, pars. 505(a)(2).
"If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines." 750 ILCS 5/505 (a)(2)
The Takeaway: Ultimately, in determining child support, the court must consider and weigh the relative financial needs and resources of the parties and the standard of living the child would have enjoyed had the marriage not dissolved. The general gist is to work equity between the parties to serve the childrens' best interest.
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