Is Child Support Modifiable?
In the state of Illinois, upon a showing of the appropriate circumstances, child support awards are modifiable. To ensure a modification of child support is enforceable, you must seek approval from a court. Any agreement to modify child support without court approval will be found to be unenforceable and a party can always demand the original terms.
Any statement within a settlement agreement that attempts to limit child support or prevent the future modification of child support will be deemed invalid. A parent cannot unilaterally change support in response to visitation or maintenance disputes because as a matter of public policy, courts have an obligation or ensure the needs of children are properly met and want to avoid any modification that may deprive the children of their needs.
Can Past Child Support Payments Be Modified?
When a substantial change in circumstances occurs, modification of child support may be warranted. If granted by a judge, a child support modification will be retroactive to the date in which the modification petition was filed. For that reason, it is vital to act as soon as this change in circumstances has occurred. The payee of child support payments that were due prior to the filing of child support modification has a vested right to receive those payments from the payor. The chance that past child support payments will be changed is improbable absent the agreement of both parties involved.
The “Substantial Change in Circumstances” Test
The test used by courts in determining the appropriateness of a proposal to modify child support is whether there has been a “substantial change in circumstances.” If you are seeking to either increase or decrease child support, you have the burden of showing a substantial change in circumstances. A court will weigh the increased needs of the child against the payor’s ability to pay child support and if there is a substantial imbalance between these two, then there will likely be a modification by the court.
Substantial changes in circumstances that warrant a modification of child support
- An increase in income of either party
- A decrease in income of either party
- A change in custody
- A change in parenting time
- The emancipation of the child
First, an increase in the ability to pay can warrant modification regardless of whether the child’s needs have increased. If a parent has a 20% change in net income, that will be deemed a substantial change in ability to pay under the Illinois Marriage and Dissolution of Marriage Act, Section 510. The rationale for this modification under the Illinois Marriage and Dissolution of Marriage Act, Section 505, is based on the courts consideration of the standard of living that the child would have enjoyed if the marriage had continued. It is presumed by the courts that if the parties had remained married and one of the parties earned more money, that the additional earnings would likely be spent, at least in part, on the child. Therefore, if the payor spouse has an increase in income, that may warrant for an increase in child support. Additionally, if the payee spouse obtains new employment or has an increase in income, that may be deemed a change in circumstances and may warrant a decrease in child support.
Next, a decrease in the payor’s ability to pay is deemed a substantial change in circumstances as well. If a voluntary or involuntary change in employment was the cause of a substantial decrease in income, it will be sufficient so long as this career change was in good faith. If this was an attempt to avoid child support obligations, it is possible that the court will find that this was in bad faith and it will not be deemed a substantial change in circumstances. If the payee decreases his or her employment, this may warrant an increase in child support if it is seen as a change in circumstances.
In addition, if there is a modification of parenting time or a change in custody in which the payor spouse spends more time with the child than before it may be seen as a substantial change in circumstances and child support may be recalculated or terminated depending on the specific facts of the case. Lastly, if a child becomes emancipated, then child support may no longer be necessary and it may warrant a reduction or termination of child support.
At Davis Friedman, our lawyers can confirm that you are paying or receiving the amount of child support that you have a right to after considering the specific facts of your case. Contact our attorneys today for assistance in the modification of your existing orders of support.
Enforcement of Prior Support Orders
A party may be held in contempt if they fail to follow a court order or judgment related to child support in Illinois. There are significant consequences that result from the failure to follow these orders such as:
- Wage garnishment
- Money judgments
- Incarceration
If your child support payments are past due, the attorney’s at Davis Friedman can offer assistance due to their experience in the enforcement of court ordered child support to ensure you are receiving the child support you are entitled to.