Illinois’ child support scheme raises many questions in the minds of many of my clients. Many residential custody mothers feel that the Illinois statutory guidlines do not provide enough financial support from the nonresidential fathers, and feel that as the father’s income rises, so should the level of support. Conversely, some fathers feel that the statutory child support scheme is too rigid and inflexible, and for a nonresidential father of multiple children, the levels of defined support are burdensome. Can the levels of support be changed, after divorce?
Section 510(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that a substantial change in circumstances will justify a modification of child support. 750 ILCS 5/510(a)(1) (West 2000). The burden of showing that a substantial change in circumstances has occurred is on the moving party. In re Marriage of Bean, 181 Ill. App. 3d 671, 673, 537 N.E.2d 342, 344 (1989). A court may increase the amount of child support solely on the basis of a parent’s increased ability to pay. See In re Marriage of Bean, 181 Ill. App. 3d at 674, 537 N.E.2d at 344-45. Additionally, it can be presumed that the cost of raising a child increases as the child grows older. See In re Marriage of Riegel, 242 Ill. App. 3d 496, 499, 611 N.E.2d 21, 23 (1993).
Section 505(a)(1) of the Act sets forth guidelines for determining the percentage amount of child support. 750 ILCS 5/505(a)(1). Section 505(a)(2) then provides:
“(2) The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of 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 and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non[]custodial parent.
Bringing a child support modification action to court can be time consuming, and there should be sufficient prospective financial advantage to the moving party, before the party, mother or father, asks the court to change a prior order for child support. Many times, however, when the circumstances of the parents or the children have changed, it is important to get the support order changed immediately. Most notable are cases where the obligor former spouse has suffered an undesired loss of employment, and the court ordered support is still being assessed against the income that was paid via the previous job. Once the job is lost, and the income is stopped, so too, should the court order for support be changed.
Child support court orders are like locomotives…they just keep rolling unless stopped. Every missed payment, even though the job is lost, is a new judgment in favor of the payee.