Illinois Child Support Modification Explained | What is a "Substantial Change in Circumstances" for Modifying Child Support?
When Can Child Support Be Modified in Illinois?
In Illinois, a temporary child support order that has been entered while a child support proceeding is pending may be modified any time before the entry of a final judgment. Child support that has been established by a final judgment may be modified at any time from the entry of the order until the termination of the obligor parent's obligation to pay child support under the order.
However, although child support may be modified at any time, a "substantial change in circumstances" must be demonstrated in order of the child support obligation to be modified.
Will I Be Able to Modify My Child Support Obligation Based on the New Illinois Child Support Law that Will Go Into Effect on July 1, 2017?
Even though Illinois Child Support laws will change on July 1, 2017, leading to a different model for calculation of child support for child support orders entered after that date, this change in the law will not alone constitute a basis for the modification of existing child support obligations entered before July 1, 2017. If your child support order was entered prior to July 1, 2017, you will still need to demonstrate a "substantial change in circumstances" other than the passage of the new law in order to have your child support obligation modified. However, if you are able to demonstrate a "substantial change of circumstances" after July 1, 2017, any modification of your child support will be calculated according to the new Illinois child support law.
How to Modify Child Support in Illinois
Illinois child support obligations can only be modified by filing a petition for increase or decrease in child support with the court that has jurisdiction over your case. The petition should state the basis for the request for modification as well as a "prayer for relief" explaining the change in child support obligation that you are requesting from the court.
Because you are seeking modification of an existing order, you do not need to serve the petition by sheriff. You can serve notice of the petition by mail at the responding party's last known address. Note that if the petition seeks other action by the court other than the modification of child support, such as a change in the allocation of parental time and responsibility, the petition must be served by certified mail 30 days prior to the date of the hearing.
If you are seeking child support modification after a final judgment has been entered in your case, the notice must be delivered to the responding party, as opposed to his or her attorney, because the attorney's representation is deemed to have ended at the entry of the final order.
You should note that you cannot use self help to modify child support in Illinois. If the other party fails to comply with visitation rights, you are not entitled to suspend your child support payments without obtaining an order from the court.
Similarly, your child support obligations cannot be modified by agreement of the parties out of court. The court retains an interest in protecting the best interest of the child. This means that any agreements by the parties to modify child support are unenforceable without a court order ratifying them.
Vested Child Support Obligations Cannot Be Modified
A "vested" child support obligation is a child support payment that has already become due according to the terms of the judgment. Although child support obligations that are not yet due can be modified at any time upon a showing of a "substantial change in circumstances, vested child support obligations can only be modified with the consent of the other party.
Do I have To Pay Child Support While An Appeal Is Pending?
If you are appealing the final order in your child support case, you are still required to pay child support according to the terms of that order while the appeal is pending. However, you can request the court that entered the order to modify your child support obligations during the appeal process based on a showing of "substantial change in circumstances.
Reasons for Modification of Child support in Illinois
The court has discretion to modify child support obligations based on either a substantial change of circumstances, upon a showing that the modification is necessary to provide for the healthcare needs of the child, or upon a showing of a substantial deviation between the child support obligation and the guidelines set forth by the Illinois Marriage and Dissolution of Marriage Act ("the IMDMA").
Modification of Child Support Based on Deviation from Guidelines
Child support modifications can be modified without a showing of a substantial change in circumstances if the petitioner can show that the obligor's child support obligations differ from the guidelines set forth in the IMDMA by more than 20%, but no less than $10.00 per month, unless the court that entered the existing order intentionally deviated from the amounts shown in the guidelines. However, this option is only available to individuals who are receiving child support enforcement services from the Illinois Department of Health and Human Services and whose child support order was entered more than 36 months prior to seeking modification.
Modification of Child Support Based on Substantial Change in Circumstances
The most common reason for the court to award a modification of child support is the petitioner's showing of a "substantial change of circumstances" occurring after the entry of the previous order. The court has broad discretion to determine whether a substantial change in circumstances has occurred. The test is whether there has been a change of circumstances of any nature that would justify equitable action by the court for the best interests of the children while appropriately considering the rights and interests of the parents. Courts have defined what qualifies as a "substantial change in circumstances" through precedent established by case law.
When Do Child Support Obligations Terminate in Illinois?
Child Support obligations in Illinois terminate when:
The obligor parent's child support obligation does not automatically terminate at the death of the obligor parent, but is instead imposed on the estate of the obligor parent. However, this undesirable situation is usually avoided with the requirement that the obligor parent maintain life insurance sufficient to cover the remainder of his or her child support obligation.
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