New Family/Second Divorce
The First Family Comes First: The first family comes first — the second family comes second. This is the law. Illinois' child support law (750 ILCS 5/505(a)(3)(g)) says:
(3) "Net income" is defined as the total of all income from all sources, minus the following deductions:
. . . .
(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
In the typical case, the first obligee obtains a court order for child support and starts receiving support first in time and the second obligee gets court relief later. Imagine a case where a guy had two kids with Mom A and then one child with Mom B. The father nets $100,000 (we'll keep this simple). Mom A files her child support case first and Mom B files second. Mom A would receive $28,000 / year for child support ($100,000 x .28). Mom B would then receive $14,400 ($100,000 - 28,000 = $72,000 x .2 = $14,400). Mom B would have received $20,000 except for the fact that Mom A and her two kids got their fair (28%) share, first and Mom B had to take her (20%) share from what was left over.
So, what do you do when the second family gets its support or maintenance order in place before the first family? Should the first family receive less support — forever — than the second family just because the first family was slow to get to court? No. The "prior obligations of support or maintenance" language "refers to the obligations to a family that is 'first in time' in relation to another family." In re: Marriage of Potts, 297 Ill.App.3d 110, 696 N.E.2d 1263, 231 Ill.Dec. 692 (2d Dist., 1998); citing In re: Marriage of Zukausky, 244 Ill.App.3d 614, 613 N.E.2d 394, 184 Ill.Dec. 367 (2d Dist., 1993). "A divorced spouse's obligations to the first family must be met before the obligations to the second family can or will be considered. Id., citing In re: Marriage of Vucic, 216 Ill.App.3d 692, 576 N.E.2d 406, 159 Ill.Dec. 737 (2d Dist., 1991) and Roqueplot v. Roqueplot, 88 Ill.App.3d 59, 410 N.E.2d 441, 43 Ill.Dec. 441 (2d Dist., 1980).
Consider this example:
Husband and Wife have two kids and Husband nets an even $100,000 while Wife is a stay-at-home-mom with no income. Husband has an affair, Mistress delivers a baby, and she goes to court to secure child support. Her support award could be as much as $20,000 -- 20% of Husband's net income because there is no prior court order.
When the child support deductions start coming out of Husband's paycheck Wife learns of the affair and decides she must divorce. She goes to court to secure maintenance and child support. Because she represents the first family, she gets bumped up to he front of the line to have her maintenance and support calculated as though Mistress's support order didn't exist. The first family comes first.
In Wife's case, the law says that maintenance is calculated first. Wife will receive $42,000 in maintenance (to net $100,000, Husband must have grossed about $140,000 and under Illinois' maintenance formula that produces a mainenance award of $42,000). That will leave $58,000 from which Wife's child support must be calculated. $58,000 x .28 = $16,240. So, Husband will pay to Wife $42,000 + $16,240, = $58,240.
At this point, Husband will be paying Wife $58,240 and Mistress $20,000 for a total of $78,240 -- leaving him only $21,760 with which to keep body and soul united. What a fall. So, he takes Mistress back to court to seek a reduction in his support obligation citing a "substantial change in circumstances." The court will then have to reduce Mistress's support award, accordingly: $100,000 - $58,240 = $41,760 x .2 = $8,352. So, Mistress will go from receiving $20,000 / year to only $8,352. Husband will go from living on only $21,760 to $33,408 ($100,000 - $58,240 - $8,352 = $33,408).
When There Is No "Prior Order:" What do you do if (same facts as above) you're married, have two kids , and your $100,000 / year husband fathers a child outside the marriage . . . but you decide NOT to divorce and instead you work to save the marriage? 750 ILCS 5/505(a)(3)(g) says the court, in making the child support award for the mistress, is to dedcut from gross income "[p]rior obligations of support or maintenance actually paid pursuant to a court order." This language would seem to give Wife (with two kids) a financial incentive to immediately divorce (or legally separate from) the adulterous husband and get her child support order in line in front of Mistress's. If Wife files for divorce (or legal separation) and obtains a support order, Wife will receive $28,000 and Mistress will receive only $14,400 (($100,000 - $28,000) x .2 = $14,400). If the wife decides to stay married, work through the affair, and reconcile, it seems like Mistress would receive $20,000 / year -- 20% of Husband's $100,000 net wihtout any offset to recognize the first-in-time status of Wife and the two kids. That would be a $467 / month loss for Husband, Wife and children.
So, should Wife abandon her hopes of saving the marriage and instead lawyer up to seek a divorce or legal separation just to protect that $467 / month? Not necessarily. Illinois law (750 ILCS 5/505(a)(2)) 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 custodial parent;
(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;
(d-5) the educational needs of the child; and
(e) the financial resources and needs of the non-custodial parent.
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.
Wife and Husband should lawyer up to defend husband agaist Mistress's child support claim. At trial, they'll stipulate to Husband's net income, but then argue for a deviaion from the guidline percentage of 20% and seek an offset in the amount of $467 (or more, depending on the circumstances). That argument has been a winner for me in many cases. Call me if you need help.
Support of Children from Subsequent Marriages Sometimes Counts: There is ONE case that says the support of children from subsequent marriages should be considered. It's not much, but it's something. James and Susan White divorced in 1979 -- when their two kids were 3 and 4. Eleven years later, after several modifications of the support award, Susan moved out of state taking the daughter with her, and left the son with James. James went back to court to modify support. After all, he was supporting the son and another child from a subsequent relationship. The trial court denied James's request and he appealed. The Appellate Court said "the trial court should consider the support paid by James for the child from a different marriage [together with] his responsibility for the support of [the son left behind by the mother]." Marriage of White, In re, 561 N.E.2d 1387, 204 Ill.App.3d 579, 149 Ill.Dec. 691 (Ill. App. 4 Dist., 1990). Like I said, it's not much, but it's something.