Illinois law provides that both parents have an obligation to support their minor children. For a parent with the majority of parenting time, that legal obligation is typically met by providing the children with the basic necessities of life. For the parent with less parenting time, that obligation is typically met by paying child support to the parent with the majority of parenting time.
A child support obligation exists regardless of whether the parents are going through divorce, were never married, or have never even lived together. Because child support is considered a right of the child, the public policy of the state of Illinois requires judges to scrutinize child support more strictly than most of the other financial issues which arise in family law cases. Child support payments are intended to ensure that a child has adequate food, shelter, and clothing. However, a parent with less parenting time than the other parent generally has no right to control the way in which the parent with the majority of parenting time spends the support, and generally has no right to demand that the parent account for how the money is spent.
Like many states, Illinois has established a formula for calculating the appropriate amount of child support that a parent with less parenting time than the other parent should pay to the parent with the majority of parenting time. Although Illinois’ minimum guidelines for calculating child support are contained in Section 505 of the Illinois Marriage and Dissolution of Marriage Act, they are also incorporated by the Parentage Act, so they apply equally to couples who were never married. Statutory guidelines provide that support shall be paid as follows:
- 20% of net income for one child
- 28% of net income for two children
- 32% of net income for three children
- 40% of net income for four children
- 45% of net income for five children
- 50% of net income for six or more children
In court, child support cases commonly involve disputes regarding the definition of net income. Illinois law defines net income for child support purposes as all income from all sources, minus:
- Federal income tax (properly calculated)
- State income tax (properly calculated)
- FICA (i.e., social security and Medicare)
- Mandatory retirement contributions
- Union dues
- Dependent and individual health insurance premiums
- Life insurance premiums ordered by the court to secure payment of child support
- Prior obligations of child support or maintenance actually paid pursuant to court order
- Expenditures for repayment of debts for reasonable and necessary expenses for production of income, including, but not limited to student loans, and medical expenses necessary to present life/health
- Foster care payments by DCFS
In many cases, the calculation of child support can be determined rather easily, particularly when all of the supporting parent’s income is reflected on his or her paystubs and W-2's, and he or she does not receive income from any other sources. However, even in the most straightforward cases, the proper calculation of tax deductions requires more than a paystub or W-2. That’s because the actual amount of state and federal income taxes paid is not always accurately reflected on paystubs and W-2’s. Proper calculation typically requires a review of actual tax returns.
Further, the proper calculation of net income can become even more complicated in cases where the non-custodial parent is self-employed, or derives income from sources other than his or her regular employment. Moreover, net income as reflected on a person’s income tax returns is not necessarily the same as that person’s net income for purposes of calculating child support. Not all deductions that a person may be entitled to take for income tax purposes are permissible deductions for purposes of calculating child support.
Child support can be established administratively through the Department of Healthcare and Family Services, or it can be established through the court system. Many families have found the Department of Healthcare and Family Services’ administrative process to be confusing, difficult to navigate, and frustratingly slow-moving. Thus, many people prefer to address their need for child support to the court system. In divorce cases involving minor children and in parentage cases, it is mandatory that the court approve any agreements regarding child support. Thus, even in cases where there are no disputes, it may still be helpful to have an attorney review your agreement before presenting it to the court.
If you need to establish support for your child, or if you need assistance in determining how much support you should be paying, contact the attorneys at Kollias & Giese, P.C. for an assessment of your case.