In this article, we will answer the question, “how is child support calculated when one party is unemployed or underemployed?” We will discuss the difference between voluntary and involuntary unemployment or underemployment and what happens when it is in the best interest of the child for one parent to be unemployed or underemployed.
In 2017, Illinois began calculating child support according to the “income shares” model widely in use in other states. This means that for child support orders entered or modified after July 1, 2017, Illinois courts determine the amount of child support payments based on each parent’s net income relative to one another.
This means that, if you are the party obligated to pay child support, you are likely to pay more the higher your income is. On the other hand, a higher income by the recipient tends to reduce your obligation. To learn more about how Illinois child support law works generally, check out our article: Illinois Child Support 2019.
Many readers have asked us what happens if one of the parents is unemployed or underemployed. The answer to this question comes down to two issues: (1) is the unemployment or underemployment voluntary?; and (2) if so, is the party’s voluntary unemployment or underemployment in the best interests of the children?
If the unemployment or underemployment is involuntary and the parent has made and continues to make good faith efforts to seek employment, the parent’s actual income will be used to calculate child support.
This means that an involuntarily unemployed or underemployed obligor (the person who pays child support) will pay less than he or she would if he or she were fully employed, because his or her actual income will be taken into account when calculating his or her child support obligation.
On the flip side, an involuntarily unemployed or underemployed obligee (the recipient of child support) will receive more from the obligor than he or she would if he or she had a full income.
On the other hand, if a parent’s unemployment or underemployment is voluntary, due to a lack of effort to find a job, a motivation to evade child support, or passing up on potential business opportunities, the court will use the unemployed or underemployed parent’s potential income to calculate child support, rather than his or her actual income.
This means that each party will present proof before the court as to what the unemployed or underemployed parent could be making if he or she were employed. The judge will weigh the evidence and determine a potential income to use in child support calculations.
A voluntarily unemployed or underemployed obligor will pay child support as if he or she was fully employed. A voluntarily unemployed or underemployed obligee will not receive a larger child support payment as a result of his or her unemployment or underemployment.
Many people ask what happens if their ex gets remarried. If your ex gets remarried, their new spouse’s income will have no impact on child support, because the new spouse has no legal obligation toward the child. If your ex becomes voluntarily underemployed or unemployed due to the remarriage, the rule discussed above will apply and courts will use potential income to calculate child support.
An exception to the rule that potential income will be used in child support calculations for voluntarily unemployed or underemployed parents occurs when the parent’s unemployment or underemployment is in the best interest of the child. In these cases the court will not impute potential income upon the unemployed or underemployed parent but will use his or her reduced actual income in the child support calculation.
In summary, when you are calculating child support when one parent is unemployed or underemployed, there are three issues before the court:
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