What Final Family Court Orders Can Even Be Modified In Illinois?
All final orders may be subject to modification under the right circumstances. Even the property division, which is very hard to modify, can be modified under certain circumstances. The normal ones modified after the marital settlement agreement have been entered are child support and maintenance or spousal support, in which maintenance and spousal support are the same things. Those are the two that are usually modified. It takes a very, very big either fraud or asset discovered after the divorce is final to open up the actual judgment. It is very complicated and rarely occurs. But regularly, if parties modify spousal support and maintenance, they also modify child support.
You can modify either of these by mutual agreement or do it with a petition and ask the court to make a decision. If you do it by mutual agreement, both maintenance and spousal support and child support require a court order to modify your obligation appropriately. You cannot just write a note to the other party that says, “I’m okay with you changing child support from $500 to $250 per month” because it’s not enforceable. Child support is the child’s right so neither party can modify child support without the court’s approval. You have to have a court order to be able to modify child support. The guidelines for child support changed in 2017. Previously, we had set percentages for child support, so if you had one child with somebody and paid child support, they would pay 20% of their net income monthly. If you had two children, it would be 28% of their net income monthly, and if you had three children, it would be 32%; four children, 38%, and so on.
That percentage of one party’s net income method was changed in 2017, and now Illinois uses the income-shares method. The income-shares method considers both parties’ net income and the number of nights that each party has with the child. If the parties have equal time, there’s a formula taking into the child’s needs and both parties’ income to come out to an amount of child support. If one party has more time with the child, between 50% of the time with the child and 41% of the time with the child, there’s a different formula. If the party has less than 40% of the time with the child, there’s yet another formula. The less time you have with the child, the more child support you pay.
That child support guideline takes into consideration what the court believes are the necessities for the child. The court comes up with a set amount that each child needs, and it’s based on the total income of the family. Each party, depending on how much income they have, has to pay a percentage of that support for the child. Whichever one has the larger responsibility for that support pays the difference to the other party, and child support has across the board gone down significantly in Illinois in the last three years. The prior method resulted in much more child support being paid. There’s a new method that the child support based on income-shares between the parties results in one party paying much less child support to the other party.
Now, when we’re calculating it upfront in a new case, there are new prior expectations of what child support should be, so it’s no problem. But in the situation where it’s a post-decree matter, where you’re making a motion to modify child support based on a substantial change in circumstances, the new statute will apply. In many cases, the person receiving child support ends up receiving much less than previously received and less than they had expected.
This has only been in place for three years, so there’s not much case law on the issue. One of the main pieces of case law that has come out that they determine that it was not a substantial change in circumstances that a mom’s income went up, a dad’s income went up, and that’s a substantial change in circumstances that should allow the father to change his child support obligation. However, the court ruled that an expected increase in income was not a significant change that would warrant an adjustment of support, that’s not what we had intended for the statute.
Some people tried to file motions because there was a new statute, and they wanted to go under the new statute. The legislature cut onto that and said no, and they did a revision and said the statute is not a substantial change in circumstances. There has to be a separate and independent substantial change. In our courts in Lake County, we often think of a substantial change as a downward deviation from the prior income of 10% or more. It is not written anywhere to define a substantial change in circumstances, so it’s done on a judge-by-judge basis. I believe judges determine that it is potentially a substantial change if it’s more than 10%.
Another thing that can be a substantial change is if the visitation schedule changes by a significant amount. I’ve seen attorneys try to apply that 10% of your visitation is increased or decreased causes a substantial change. Some judges buy it, some don’t. But suppose you can show a substantial change in circumstances, like losing your job or something similar to that. In that case, the new statute will apply even if you’ve previously been under the percentage method for a percentage of one party’s net income. If you prove a substantial change in circumstances, they have to apply the new statute. When they apply the new statute, it will be under the income-shares.
If you have a substantial change in circumstances, like losing your job during COVID, and then you receive a new job, and it’s higher paying than the first one, it doesn’t allow you to go back under the old statute. Once it’s been determined, a change in circumstances puts you under the new statute, and you can never get back to that old statute. However, when you get that new job, your new income will be put into the new statute guidelines, and child support will be recalculated. Even though it’s a return to normal, the child support you were paying doesn’t return to the way it was.
When you lose your job in Illinois, you have to demonstrate that you lost your job due to no fault of your own. However, because of COVID, the judges are not considering that because they see so many people who have lost their job due to COVID. In some ways, it has taken away that burden of proof that used to be required to prove that you needed a modification of child support.
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