Child Support Issues
To get answers to frequent questions about child support issues in the state of Illinois, please select one of the links below:
- If my spouse is awarded custody of my children, do I have to pay child support and, if so, how much?
- What constitutes net income for determining my child support obligation?
- Are 401(k) contribution a deduction for determining net income?
- Other than child support, are there other obligations for the support of children?
- Do I have to pay tax on the child support that I receive for my children?
- Once a court issues a child support order, can the amount of support be modified?
- If I voluntarily quit my job can I seek a reduction in child support?
- If I cannot afford an attorney at this time to file a motion to reduce child support, when I can afford to do so, can the court grant me relief back to the date that I qualified for the reduction?
- What if I have a side agreement with my ex-spouse regarding child support where we agree that instead of paying child support, I will pay other expenses directly for the children?
- When does child support obligation terminate?
- Other than a contempt of court proceeding are there other methods to enforce a child support award?
- If a party does not pay child support, should that party be required to pay the reasonable attorney’s fees of the person seeking to collect child support?
- In a divorce proceeding or in a paternity proceeding can the mother and I make an agreement to waive child support?
- In Illinois, can a divorced parent be required to pay a portion of their child's college education expenses?
- If I have never been married to the mother or father of my child, do the child support rules that you have set forth above apply?
If my spouse is awarded custody of my children, do I have to pay child support and, if so, how much?
Yes, you have an obligation to pay child support to your spouse or former spouse on behalf of your children. Illinois has established guidelines for the payment of child support which are based upon a percentage of the non-custodial or possessive parent’s net income. The actual child support award will usually be set as a specific dollar figure rather than a percentage figure. The Illinois guidelines provide:
||20% of net income
||28% of net income
||32% of net income
||40% of net income
||45% of net income
||50% of net income
The above guidelines are applied by the court unless the court finds that there are reasons to deviate from the guidelines. The deviation may be an increase or decrease in the guideline percentage. In cases where payment of guideline support would result in a windfall to the custodial parent, the court may deviate downward from the guidelines. This could occur in a situation where the non-custodial or non-possessive parent has an extremely high income. The court could also order the non-custodial or non-possessive parent to pay in excess of the guidelines if the needs of the children exceed the amount of support that would be awarded if the guidelines where applied. Both of these examples are the exception and not the rule, and courts will typically apply the guidelines.
What constitutes net income for determining my child support obligation?
In arriving at your net income, Illinois law allows for deductions from your gross income which are not necessarily the same as the deductions on your paycheck.
The deductions allowed by Illinois law are:
- Appropriately calculated federal and state income taxes,
- FICA and social security payments,
- Mandatory retirement contributions,
- Union dues,
- Dependant and individual health and hospitalization insurance premiums,
- Other obligations of support or maintenance actually paid under a court order.
There is also a final type of deduction which is rather complex and should be discussed with an attorney. Consequently, you should not assume that net income used to calculate child support is the same as the net income that you take-home on your pay.
Are 401(k) contribution a deduction for determining net income?
No. 401(k) contributions are generally not mandatory. Illinois law only allows a deduction for pensions that are required by your employer. Consequently a 401(k) contribution would only be an allowable deduction if it were required to be made as a condition of employment.
Other than child support, are there other obligations for the support of children?
Yes. In addition to child support, it is common for the court to make a support-paying parent to pay a portion of the day care expenses incurred by the custodial or residential parent relative to his or her employment or education.
Additionally, the court will generally require the support-paying parent to provide medical insurance for the benefit of the children and to contribute to the cost of medical and dental expenses not covered by insurance.
Do I have to pay tax on the child support that I receive for my children?
Unless otherwise agreed upon by the parents, child support is not taxable to the recipient, nor is it a tax deduction for the paying party. This is contrary to maintenance which is also referred to as spousal support or alimony, which is usually deductible by the payor and is included in the recipient’s taxable income.
Sometimes in a Marital Settlement Agreement, the parties combine child support and maintenance into one payment referred to as unallocated family support which is taxable to the recipient and deductible by the payor for federal and state income tax purposes.
However, there are complex tax laws that must be followed to ensure that such payments will be deductible by the payor.
Once a court issues a child support order, can the amount of support be modified?
Yes, however the court will not grant the request for modification unless there has been a significant change in circumstances since the last child support order was entered which would justify the modification.
Examples of a significant change in circumstances may be: a substantial increase in the payor’s income, a substantial change in the needs of the children or the emancipation of one or more of the children.
If I voluntarily quit my job can I seek a reduction in child support?
There is a body of Illinois case law addressing the situation where the child support payor quits his or her job. If the court finds that the voluntary termination of employment is made in bad faith, then the court can impute income to payor and require the payor to pay child support as if the previous job had not terminated. In this case, the payments would remain due and payable even if there may be little present means to pay the child support.
Essentially, the law allows the court to set support or maintain the current support award based upon the spouse's prior income if the spouse quits a job without good cause and where there is an intent to avoid a child support obligation.
If I cannot afford an attorney at this time to file a motion to reduce child support, when I can afford to do so, can the court grant me relief back to the date that I qualified for the reduction?
No. The court only has the authority to modify your child support obligation retroactive back to the date that you filed your motion to reduce.
The law states that each missed child support payment is a judgment, therefore the support award can not be retroactively modified. Also, each missed child support payment accrues statutory interest of 9% per year retroactive to the date the payment was due. Consequently, regardless of your economic situation, until you file a petition to modify, the full amount of child support plus 9% interest remains due and owing.
What if I have a side agreement with my ex-spouse regarding child support where we agree that instead of paying child support, I will pay other expenses directly for the children?
In Illinois, verbal agreements as to child support are not enforceable – even if the parties verbally agree. Agreements modifying child support must be in writing and entered with the court.
When does child support obligation terminate?
Current Illinois law provides that "The termination date shall be no earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the child's high school graduation will occur or the date on which the child will attain the age of 19."
While this is a correct statement of the law, the termination date may be set forth differently in an existing support order – which may also have an effect on the termination date for child support. If there are any questions as to your termination date of child support, consult with a lawyer.
Other than a contempt of court proceeding are there other methods to enforce a child support award?
Recently, more methods have become available to enforce the collection of child support from so called “dead-beat” parents. Under certain circumstances, some or all of the following methods may be available for collection:
Intercepting Federal and State payments including tax refunds and even lottery winnings.
Requesting a hearing for suspension or revocation of an Illinois professional license or occupational certificate.
Requesting the denial or suspension of the right to a U.S. passport.
Requesting state prosecution for non-payment of support.
Seizing assets of the non-custodial parent to repay child support debt.
Reporting a dead-beat parent to credit reporting agencies.
Suspending the driver’s license of a parent who does not pay support.
Entering a Qualified Domestic Relations Order against a 401(k) type plan for the person who has an arrearage for child support or maintenance – to the extent allowable under Illinois law.
Obtain a judgment of $100 per day against an employer who fails to withhold income for payment of support.
If a party does not pay child support, should that party be required to pay the reasonable attorney’s fees of the person seeking to collect child support?
Yes. The general rule is that unless the non-complying party can show a compelling cause or justification for the non-payment of support, then payment of the other party's reasonable attorney's fees should be mandatory. This is Illinois law both regarding non-payment of child support and non-compliance with other family law court orders.
In a divorce proceeding or in a paternity proceeding can the mother and I make an agreement to waive child support?
No, in a divorce or paternity proceeding, you cannot make an enforceable agreement with the father or mother of your child to waive the payment of child support.
Although many parents have tried to bargain away their child's right to financial support upon the stipulation that the other parent not exercise their right to visit the child, it is prohibited by Illinois law since it is not in the child's best interest. Consequently, no court will enforce an agreement to waive support.
In Illinois, can a divorced parent be required to pay a portion of their child's college education expenses?
Yes. The law in most states is that the divorce court does not have the authority to order a parent to contribute to his child’s college educational expenses – unless they are enforcing a voluntary agreement of the parties.
However, Illinois is one of approximately eighteen states in which a parent can be required to pay for his or her child’s post-high school education expenses. Illinois law limits the responsibility to the child obtaining his or her undergraduate degree. The factors applied by the court to determine the amount, if any, of your obligation are:
- The financial resources of both parents;
- The financial resources of the child;
- The standard of living the child would have enjoyed had there not been a divorce; and
- The child's academic performance.
The financial resources of the parents and child include not only their respective incomes but also their assets and liabilities. The child’s financial resources most often become a factor when they have custodial accounts, college bonds or other funds that have been set aside for the child’s education.
If the children are young when their parent’s marriage is dissolved, most courts will reserve the issue of how the post-high school education expenses are to be allocated. The reason for the reservation is that circumstances will more than likely change significantly before the child graduates from high school, therefore it is premature to address the issue until a child is ready to graduate.
If I have never been married to the mother or father of my child, do the child support rules that you have set forth above apply?
Generally, the same rules apply. An argument could be made that the same rules that apply to payment of post-high school educational expenses for divorced parents may not apply to children born out of wedlock. This issue is complex and a lawyer should be consulted to address this – and any other legal issue addressed in these frequently asked questions (FAQs).
The purpose of this frequently asked questions (FAQs) are to provide a general overview of certain Illinois family law issues. These FAQs are not intended to provide legal advice that applies to any specific case. The nature of family law proceedings is that the facts and circumstances of each case are critical when a lawyer provides legal advice. Further, these FAQs are not intended to be inclusive or to deal with every situation that may arise in matrimonial disputes. You should discuss with your attorney how the particulars of these Questions and Answers may apply to your case.
Hopefully these FAQs will serve at least two purposes for you. It can give you a working familiarity with some basic concepts in Illinois family law so that when you meet with your attorney you will be in a better position to discuss various issues and to use your time efficiently. Because you will likely be receiving a tremendous amount of information in your initial consultation with your attorney, these FAQs might also help you retain critical information and refresh your recollection of what your attorney told you.
The statements contained in these FAQs do not necessarily reflect the positions of the Illinois Chapter of the American Academy of Matrimonial Lawyers.
For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at email@example.com.