Modifying Child Support

updated 21 September 2019

by Wes Cowell;

 

Child support is ALWAYS modifiable anytime there has been a "substantial change in circumstances" since the last order addressing child support.  If there has been a "substantial change in circumstances" the court looks to factors that determine child support.   Need advice?  Call, leave your info, or schedule a consultation.

 

No Retroactive Reductions:  Before we get to the threshold question (substantial change in circumstances), let's talk about retroactivity and "notice."  Illinois law (750 ILCS 5/510(a)) states

 

(a) . . . the provisions of any judgment respecting . . . support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.

 

Courts enforcing this restriction routinely look to the FILING date of the motion to modify support.  In fact, the law says the limiting date for retroactive modification should be the date the respondent receives "due notice . . . of the filing of the motion for modification."  So, remember to argue the point if there is any significant discrepancy between the filing date and the date the respondent receives "due notice." 

 

If you think your child support order should be reduced, the sooner you act the sooner the modification will go into effect.  Every day that goes by until you start the court process is a day that the court cannot later change – you're just throwing money away.

 

Correcting Mistakes:  Sometimes folks go to court to modify support and they just make a simple mistake in arithmetic -- like 2+2=5.  In such a case, you've got 30 days in which to correct the mistake.  After that, you're stuck paying 5 even though you should pay only 4.  Within 30 days, your attorney can go back and explain the mistake and fix it.  After 30 days, nunc pro tunc orders (court orders that have retroactive effect) cannot be used to correct errors by the judge or your attorney.  In re: Marriage of Takata, 304 Ill.App.3d 85, 709 N.E.2d 715 (2d Dist., 1999).


Retroactive Reductions ARE  Allowed In Some Cases:  At least one appellate case, however, has pooh-poohed the "due notice" requirement.  In Shoff v. Shoff, Mom was awarded custody, but the child soon went to live with Dad.  Two years later, Dad sought and was awarded temporary custody . . . but he forgot to ask that the court terminate his child support obligation.  Several months after that, on the day of the hearing to convert the temporary custody award to permanent custody, Dad finally asked to terminate his existing support obligation.  The court granted Dad's request, awarding him permanent custody and retroactively terminating his child support obligation back to the date of the temporary custody award . . . a three-month bonus, for Dad.  Mom knew that was wrong:  Dad failed to give "due notice" under the statute and, therefore, could be granted child support termination only from the "notice date" going forward.

 

I want to be sure you understand the facts, here:  Mom had a paper that said she had custody and should receive child support.  The child, however, had been living with Dad for two years.  Dad finally got around to filing papers to modify custody and three months later was then awarded temporary custody.  Mom was arguing, Dad STILL had to pay support to Mom "because the papers say so!" even though the child had been living with Dad and Dad had been supporting the child on his own without any support from Mom.  The appellate court said:

 

[Mom] points out that Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act provides that a judgment respecting child support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of a motion for modification. (Ill.Rev.Stat.1987, ch. 40, par. 510(a).) However, we think that in this case, appellant was put on due notice by the filing of the petition for temporary custody that she might lose custody of the child, and thereby also the right to collect child support payments. Although this does not follow the exact language of Section 510(a), we think it fulfills the purpose of that section. Child support is just that -- financial support for a child. Where a custodial parent is directly providing for all of a child's financial needs, there is no reason to require the custodial parent to pay child support to the non-custodial parent. The trial court properly determined that appellee's obligation to pay child support terminated on the date the order was entered granting him temporary custody of the child.

 

Shoff v. Shoff, 534 N.E.2d 462, 467 - 68, 179 Ill.App.3d 178, 186 - 87  128 Ill.Dec. 280 (Ill.App. 5 Dist., 1989)

 

Shoff is old case law, but it's not been overturned.  Indeed, the Illinois Supreme Court referenced Shoff in its 2014 ruling in Turk v. Turk (2014 IL 116730 (Ill., 2014) ruling.  So, if you're looking at modifying child support and want retroactive relief, don't be dissuaded by the restriction in the statute.  The Shoff court says common sense takes priority over those wordy laws.

 

Increases MAY Be Retroactive:  A custodial parent may seek an increase in child support whenever there has been a "substantial change in circumstances" that justifies the increase.

 

The wording of most child support orders places many technical obligations on the obligor.  Violation of any one of these technical requirements usually opens the door to a retroactive increase in child support.  For example, a support order may require an obligor to notify the support recipient of any increase in income.  If the obligor gets a big raise but doesn't tell the recipient, and the recipient learns of the raise a few years later, that recipient can almost certainly reach back to the date of the raise to collect all of the missed child support.

 

Emancipation Is Not a Bar to Retroactive Increase:  In one case, after the child's 21st birthday, the recipient was able to go back over fifteen years to increase child support.  The obligor had lost his job and support was temporarily abated.  He was supposed to notify Mom when he re-started work.  He wen beck to work but forgot to tell Mom.  Fifteen years later, after the child had finished high school and moved out, Mom found out Dad had been working all those years.  She went back to court and got her past-due child support.  People ex rel. Greene v. Young, No. 4-05-0782 (4th Dist, 2006).

 

Reductions Require Substantial Change in Circumstance Since Last Order ONLY:  Imagine you net $100,000 and you're paying support of $20,000.  You quit your job to follow your true calling and your net income drops to $60,000.  You seek a reduction in support but are denied because the income reduction was voluntary.  Unable to pay $20,000 in support on a net of $60,000, you abandon your true calling and go back to your old job.  The industry and clientele have changed, however, and you're not able to reach your old income of $100,000.  Instead, you net only $70,000.  Now the element of "voluntary" is gone -- you're back at your old job and it's not your fault that you're not earning more -- your lower net income of $70,000 is only because the industry and clientele have changed.

 

You should be able to get a reduction under these circumstances, right?  Wrong!  The court may only consider a change in circumstances since the entry of the last order.  In that light, your income hasn't dropped from $100,000 to $70,000.  Since the entry of the last order, your income has increased from $60,000 to $70,000.  You'll still be stuck paying $20,000 for child support, even though you should only pay $14,000.  Ouch!

 

The above scenario is what happened in In re: Marriage of Armstrong, 346 Ill.App.3d 818, 605 N.E.2d 743 (4th Dist., 2004).  The non-custodial father was earning $90,000 per year and was paying $19,200 per year in support. He voluntarily changed jobs and his income dropped to $60,000. Because the reduction in income was voluntary, his request to reduce child support was denied. Two years later, when he was earning $67,000 per year (and the mother was earning more than he was), he tried to reduce his obligation again. He wanted to use the $90,000 figure to argue that his income was much lower than it previously had been.  The appellate court instead considered his income at the time of the last order entered (i.e., $60,000).  In other words, in the court's eyes, at the time of the second request for a reduction, the father's income hadn't decreased from $90,000 to $67,000, it had increased from $60,000 to $67.000. See, also, In re: Marriage of Adams, 348 Ill.App.3d 340, 809 N.E.2d 246 (3d Dist., 2004)

 

Substantial Change in Circumstances -- Specific Issues:  There are, of course, an unlimited number of fact patterns by which to justify a "substantial change in circumstances."  Here is a shortlist of the most common fact patterns and what the court has said in salient cases.

 

A Change in Custody or Parenting Schedule:  It's not guaranteed to result in a support modification, but a change in custody or a significant change in the parenting schedule may result in a modification of the support obligation.  Along with Shoff, above, another big case for this proposition is In Re:  Marriage of White, 204 Ill. App. 3d 579, 149 Ill. Dec. 691, 561 N.E. 2d 1387 (4th Dist., 1990).  Susan and Jim White divorced in 1979 and Susan got custody of the two kids.  By 1989 Susan wanted to move out-of-state and things worked out that Susan took their 15-year-old daughter while the 14-year-old son stayed with Jim.  A month after Susan left, Jim lawyered-up and went to court to reduce his support obligation.  The trial court acknowledged that there had been a change in circumstances; but not a change in financial circumstances (meaning Jim's net income), so it refused to reduce Jim's support obligation.  Jim appealed and the appellate court reversed, saying:

 

A change of custody is itself a substantial change in circumstances. The factors set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) should be applied, and it is the responsibility of the parties to present the evidence with respect to the factors set forth therein.  In this case, after the finding of a substantial change in circumstances, the trial court did not determine the support figures pursuant to section 505 of the Act.

 

In Re:  Marriage of White, 204 Ill. App. 3d 579, 149 Ill. Dec. 691, 561 N.E. 2d 1387 (4th Dist., 1990).

Similarly, in In re: Marriage of Duerr, for example, the mother was awarded custody of the children but she soon consented to have the children live with the father.  He, of course, stopped paying support when the children moved in with him.  The mother later sued for unpaid child support.  The court concluded that her consent to let the children live with the father lent credibility to the father’s assertion that there had been an understanding that he would no longer pay child support to the mother.  In re:  Marriage of Duerr, 250 Ill.App.3d 232 (1st Dist., 1993).

 

Emancipation of a Child:  Where a couple has more than one child and the eldest attains the age of majority, support should almost always be modified.  An obligor (the parent paying support) may not unilaterally reduce the amount of support without approval by the court in the form of a court order.  See my other article on Emancipation and Reducing Child Support.  Where there is only one child, however, the support order should contain a self-executing termination date that makes a return to court unnecessary.  Before the obligor stops paying support, however, he / she must be sure to carefully review the most recent court order to make certain the self-executing termination date is in effect.  When in doubt, go see the judge -- even emancipation is not a sure thing.  Here's what one court said:  

 

Generally, evidence that a child has attained the age of majority constitutes a substantial change in circumstances which necessitates the modification of child support unless: (1) the parties agree on a different terminating event; (2) the court orders support payments to continue based on the non-minor child's physical or mental disability or when educational expenses are sought; or (3) the child becomes emancipated at an earlier age. [750 ILCS 5/]510(c), 513.

 

However, the presumption that there has been a substantial change in circumstances when a child attains the age of majority can be rebutted by countervailing evidence that the [child support] payment is still necessary, such as, (1) the financial resources of the [remaining] children; (2) the financial resources and needs of the custodial parent; (3) the standard of living the children would have enjoyed had the marriage not been dissolved; (4) the physical, emotional, and educational needs of the children; and (5) the financial resources and need of the noncustodial parent or parents. 

 

In re:  Marriage of Ferraro, 211 Ill.App.3d 797, 570 N.E.2d 636, 156 Ill.Dec. 160 (1st Dist., 1991), citing In re Marriage of Milburn (1986), 144 Ill.App.3d 76, 80, 98 Ill.Dec. 234, 494 N.E.2d 161.

 

Deteriorating Health of the Obligor:  When the obligor's health necessitates a job change and a resulting reduction in income, a modification of support is warranted.

 

In In re Marriage of Hardy, 191 Ill.App.3d 685, 138 Ill.Dec. 909, 548 N.E.2d 139.(5th DIst., 1989), this court was also confronted with a voluntary job change because of detrimental health.  This court held that such a change does not necessarily equate with bad faith or intention to evade familial support responsibilities.  The court in In re Marriage of Kowski, 123 Ill.App.3d 811, 79 Ill.Dec. 286, 463 N.E.2d 840 (1st Dist., 1984) further held that when a voluntary job change is precipitated by health reasons and the change results in a substantial reduction of income, a corresponding modification of support responsibilities may be justified.

 

In re:  Marriage of Maczko, 263 Ill.App.3d 991, 201, 636 N.E.2d 559, Ill.Dec. 127 (1st Dist., 1992)

 

An increase in the Child's needs:  Sometimes the cost of rearing children increases.  Some kids need more support than others.  The statutory guideline percentages are based on relatively healthy, well-adjusted kids living in a relatively stable environment immune to cost increases.  When those presumptions change, a deviation from the guidelines may be warranted.

 

Special Needs Kids:  In In re: Marriage of Kern, 615 N.E.2d 402, 245 Ill.App.3d 575, 185 Ill.Dec. 843 (Ill. App. 4 Dist., 1993), Lewis and Cheryl Kern divorced in 1985 and Cheryl was awarded custody of their 11-, 9-, 7-, and 6-year-old children.  Seven years later, Lewis sought a reduction from his $800 / month support obligation based on 1) the emancipation of their eldest son and 2) a 25% reduction in his own income.  Their next-youngest son had some special needs:  he was blind in one eye, overweight, slow moving, had a learning disability . . . and started seeing a psychologist immediately after Lewis filed his petition.  The trial was a little sloppy and the trial judge didn't have much to go on.  The trial court reduced support to $600 / month -- apparently reducing the original support by one quarter as one of the four children had emancipated.  This was an obvious deviation from the guidelines, but not enough to satisfy Lewis -- he thought a bigger reduction was warranted given he had lost 25% of his income and 25% of the kids had emancipated.  

 

Lewis appealed arguing that his own income had gone down, one child had emancipated, and there was hardly any evidence about the extra costs for the special needs child.  The appellate court rebuffed him saying simply "[s]ufficient evidence was presented that [the child] has some learning, physical, and mental difficulties for which he is being treated."  In re: Marriage of Kern, 615 N.E.2d 402, 245 Ill.App.3d 575, 185 Ill.Dec. 843 (Ill. App. 4 Dist., 1993).

Involuntary ("Fortuitous") Reduction in Income:  A non-custodial parent may be able to reduce his or her child support payments based on a "substantial change in circumstances;" that is, when new circumstances justify it. Generally speaking, the court will permit a reduction where the change in circumstances is beyond the control of the parent paying support. For example, if you pay support and you're laid off from your job, the court will probably grant a reduction in your support payments. If, however, you voluntarily reduce your income, quit your job, or do something intending to get yourself fired, you probably won't get much sympathy from the court – meaning no reduction.

 

Voluntary Reduction in Income -- Child Support Reduction Allowed: Reduction requests based on a voluntary reduction in income are usually, but not always, denied.   To prevail, an obligor seeking a support reduction based on a voluntary or self-imposed reduction in income must demonstrate that the reduction was done in good faith. The judge must consider all of the circumstances surrounding the request for the reduction.

 

In one well-known case, an attorney quit his high-paying job at a nice law firm to start his own practice.  The reason?  His former wife married one of the law firm’s biggest clients and the partners at the law firm were attempting to dictate to the former husband the course of his post-decree litigation with his former wife.  The court agreed that such a situation was untenable and concluded that when he quit his high-paying job at the law firm, he did so in good faith and not merely as an attempt to reduce his child support obligation.  In re:  Marriage of Barnard, 669 N.E.2d 726, 218 Ill.Dec. 583 (4th Dist., 1996).

 

Perhaps the case cited most often on this point is Coons v. Wilder, 416 N.E.2d 785, 93 Ill.App.3d 127, 48 Ill.Dec. 512 (2d Dist., 1981) in which the court said:

 

It is well established that a voluntary change in occupation or employment made in good faith may constitute a material change in circumstances sufficient to warrant modification of a child support order. (In re Marriage of Ebert (1980), 81 Ill.App.3d 44, 46-47, 36 Ill.Dec. 415, 417, 400 N.E.2d 995, 997; In re Marriage of Uphoff (1980), 80 Ill.App.3d 145, 147, 35 Ill.Dec. 293, 295, 398 N.E.2d 1243, 1245; Glass v. Peitchel (1976), 42 Ill.App.3d 240, 242, 355 N.E.2d 750, 754). The crucial consideration in testing "good faith" is whether the change in status was prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests. (Graham v. Graham (1974), 21 Ill.App.3d 1032 1036, 316 N.E.2d 143, 146; (additional citation omitted). Substantial economic reversals resulting from investments or employment are proper circumstances to be considered in determining whether child support might be reduced or terminated.  (See, Elizer v. Elizer (1976), 36 Ill.App.3d 552, 555, 344 N.E.2d 493, 496). The change in circumstances must, however, be fortuitous in nature and not the result of deliberate action or conduct of the party seeking the reduction. (Shellene v. Shellene (1977), 52 Ill.App.3d 889, 890-91, 10 Ill.Dec. 667, 668, 368 N.E.2d 153, 154; see also Miller v. Miller (1978), 65 Ill.App.3d 844, 847, 22 Ill.Dec. 433, 436, 382 N.E.2d 823, 826.) While in this case, the unfortunate investment was obviously a deliberate act on the part of the respondent, we doubt the ultimate loss sustained from it can be termed anything but fortuitous; it has not been suggested respondent did not hope for and expect to improve his financial status by this means. If he had done so, certainly his then increased assets would be considered in determining his ability to pay child support.

 

. . . .

 

Ordinarily, a man makes an investment or changes his occupation with the hope of improving his prospects for the future, including raising his own standard of living as well as that of his children. (See Fogel v. Fogel (1969), 184 Neb. 425, 168 N.W.2d 275).  Following the dissolution of marriage, the custodial parent and children cannot be allowed to freeze the other parent in his employment or otherwise preclude him from seeking economic improvement for himself and his family. So long as his employment, educational or investment decisions are undertaken in good faith and not deliberately designed to avoid responsibility for those dependent on him, he should be permitted to attempt to enhance his economic fortunes without penalty.

 

Coons v. Wilder, 416 N.E.2d 785, 93 Ill.App.3d 127, 48 Ill.Dec. 512 (2d Dist., 1981)

 

Going back to School to Improve Prospects:  Note that in the Coons case, above, the appellate court said "So long as his employment, educational or investment decisions are undertaken in good faith and not deliberately designed to avoid responsibility for those dependent on him, he should be permitted to attempt to enhance his economic fortunes without penalty."  This line could, possibly, be used to argue the case where an obligor quits his job to obtain further education.   It does not offer carte blanche, however.   Successful cases depend on successful facts.  Where an obligor gives up overtime to attend night classes, a reduction would probably be allowed.  Where an obligor quits a job altogether to go back to college, a reduction would probably not be allowed.

 

Out-of-Court Agreements Are Not Enforceable:  Many parents make the colossal mistake of agreeing outside of court to change the amount of child support that one will pay to the other.  When child support has been established by court order, only a court may modify that order.  That child support order remains in effect until a judge modifies it.  In Blissett, the parents divorced in December 1975 and by June 1977 they agreed that Dad would give up his rights to visitation in exchange for Mom relinquishing her right to collect child support.  They shook hands on the deal and went their separate ways.  Seven years later, in 1984, Mom went back to court looking to collect her past-due support.  She won:

 

"In the present cause, Allen and Barbara agreed to waive future child support payments in exchange for Allen's giving up his future visitation with the children. The parties did not attempt to safeguard the children's interests by establishing in court, prior to the initiation of the agreement, that the children would have adequate financial support, and that ending visitation was not detrimental to the children. Because Allen and Barbara failed to obtain judicial approval of their agreement, but rather usurped the judicial function by modifying the court-ordered child support obligation themselves, their agreement is not enforceable."

Blisset v. Blisset, 123 Ill.2d 161 (1988). 

 

"The modification of a child support obligation is a judicial function, administered exclusively by the court as a matter of discretion. (Finley v. Finley, (1980), 81 Ill.2d 317, 43 Ill.Dec. 12, 410 N.E.2d 12.  The court is obligated in marital dissolution proceedings to protect the best interests of the children involved. See,[750 ILCS 5/602; seealso 750 ILCS 5/502].  Moreover, although property disposition agreements between spouses are binding upon the court, unless unconscionable, in marital dissolution proceedings, the court is not bound by agreements providing for the support, custody, and visitation of the children. ([750 ILCS 5/502(b)]) Allowing former spouses to modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children's interests.  Former spouses might agree to modify child support obligations, benefiting themselves while adversely affecting their children's best interests.  Parents may not bargain away their children's interests. (See, Huckaby v. Huckaby (1979), 75 Ill.App.3d 195, 199, 30 Ill.Dec. 909, 393 N.E.2d 1256; Anthony v. Anthony (Iowa 1973), 204 N.W.2d 829, 833.)  It is for this reason, then, that parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children.  See, Finley v. Finley (1980), 81 Ill.2d 317, 43 Ill.Dec. 12, 410 N.E.2d 12; Hart v. Hart (Mo.App.1976), 539 S.W.2d 679.

In In re: Marriage of Smith, 347 Ill.App.3d 395, 806 N.E.2d 727 (2d Dist., 2004), the parties divorced in 1983 and the mother was awarded sole custody of the three children. The father paid some support, but the parties (so the father alleged) agreed to terminate the support requirement.  Eighteen years later, she sued to collect unpaid child support. The father argued that 1) at one point the parties had agreed out-of-court that he wouldn't have to pay any more support and 2) he was at a disadvantage because his bank only kept records for seven years and he couldn't prove how much he did – or did not – pay beyond seven years. The mother testified that to the best of her recollection (she didn't even have records – just her recollection) the father owed her over $60,000.  Just like that, the father was ordered to pay $60,000 in back child support.   The point is, the child support order was not (and could not have been) modified by the parties out-of-court agreement. Only courts can modify court orders. The father failed to meet his burden of proof – always keep records of payments.


Out-of-Court Agreements May Be Enforceable by "Equitable Estoppel":   In some cases, however, parents do some things that may convince a court that their agreement should be honored.  In In re: Marriage of Case, the father owed tens of thousands of dollars in past-due support and agreed to let the other's new fiancé adopt the children in exchange for forgiving the past-due child support and releasing him from all future child support. He signed a "Consent to Adoption" and immediately stopped paying support.  The adoption didn't happen right away, however, and the mother – two and a half years later – brought a case against the father to pay support and to collect the past-due support. The court said that the amount of support that was owed on the day the father signed the Consent to Adoption was valid and he still owed that amount, but (under a theory of equitable estoppel) he did not owe anything for the period of time after he signed the Consent to Adoption."  When the adoption finally went through, child support was then finally terminated.  In re: Marriage of Case, (No.: 4-03-0916, 4th Dist., Aug. 30, 2004).  

 

In In re: Marriage of Bodine, the father signed a Consent to Adoption form and stopped paying child support. The mother, however, without telling the father, changed her mind and didn't go through with the adoption.  The judge applied the doctrine of equitable estoppel and found that the custodial parent was not entitled to child support for the period after the consent was signed to when she filed her criminal nonsupport case against him.  In re: Marriage of Bodine, 141 Ill.App.3d 21, 489 N.E.2d 911 (1986).

 

Under the common law theory of "equitable estoppel" many courts will enforce the terms of an out-of-court agreement even though no judge approved the agreement beforehand.  The requirements one must show to the court in order to win an equitable estoppel argument can be very tricky.  Read my article on Equitable Estoppel.

 

Act Quickly: You May Not Get Full Credit for Overpayments: The traditional rule in Illinois is that no credit is given for voluntary overpayments of child support, even if they are made under the mistaken belief that they are legally required.  Nevertheless, every general rule has exceptions. Whether you've overpaid, or received overpayments, call me to find out how you can best protect yourself financially.

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