Modification of Child Support
Generally speaking, in order to modify a child support order, the petitioning party must prove that a substantial change in circumstances has occurred since entry of the last support order. In very limited circumstances in which the state is involved in a child support case, support may be modified without the showing a substantial change in circumstances. This is the exception to the rule, and is only available in cases with very specific circumstances.
Among the most common reasons for modification of support is the emancipation of a child. For example, a supporting parent paying 28% of his or her net income for guideline child support for two children is legally entitled to a reduction to 20% when the oldest child becomes emancipated. Illinois law defines emancipation as the child’s 18th birthday or graduation from high school, whichever occurs last. Illinois law also specifies that if a child has not graduated high school, the obligation to pay child support terminates on the child’s 19th birthday.
Another common reason to seek a modification of child support arises when a parent has a change in employment. In the case of a supporting parent’s change in employment, the court may recalculate guideline support based upon that parent’s new income and benefits. In the case of a non-supporting parent’s change in employment, it may be the case that he or she may now require daycare for the children, and the court may modify the supporting parent’s obligation to pay a portion of those expenses.
Sometimes, the substantial change in circumstances arises necessary to seek a modification of child support arises from the mere passage of time. As children grow older, their needs change. For example, they may no longer require daycare, or the cost of their school and extra-curricular activity expenses may have increased.
In reviewing whether a substantial change in circumstances has occurred, the court may also consider the reason for the change in circumstances. This is particularly true when the change in circumstances is a parent’s loss of employment or reduction in income. More specifically, if the court determines that a person paying child support has voluntarily reduced his or her income in an effort to reduce or eliminate his or her child support obligation, the court may deny the request for modification. If a supporting parent was terminated from his or her employment as a result of misconduct, in some instances the court might also deny a request to reduce support. Moreover, lack of employment due to incarceration for the commission of a crime is typically not a basis upon which to reduce child support.
If the court determines that modification of child support is appropriate, the modification can be applied retroactively to the date notice of the petition to modify was given to the other parent. The court cannot order a change in child support to be effective prior to the date of notice of the petition to modify, absent very exigent circumstances.
The rules regarding the effective date of a modification have serious practical implications. Regardless of whether a party has a valid basis for a modification of support, such as job loss or disability, the prior child support order will remain in full force and effect unless and until the court enters an order modifying it. Since the court cannot make a change in child support retroactively prior to the date legal notice of the petition to modify was given to the other parent, it is imperative that a parent with a good-faith basis for a modification of support file a petition as soon as possible.
If you are seeking a modification of support, or defending against a request for modification, contact the knowledgeable, experienced family attorneys at Kollias & Giese, P.C. for an analysis of the facts and circumstances of your case.