In this article we will discuss both the process for modifying child support obligations in Illinois and what constitutes a "substantial change in circumstances" that would allow child support to be modified. For some foundational information, check out our articles: Illinois Child Support Law Explained and Recent changes to Illinois Child Support Law.
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.
If you file a petition to modify a child support order based on "substantial change in circumstances" the child support obligation in question can be modified retroactively to the filing date of the petition, but can not have an earlier effective date.
Even though Illinois Child Support laws changed 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.
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.
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.
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.
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").
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.
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.
Comment by DJ:
Great set of articles. I was divorced in 2014 with one child and would have certainly considered you had I seen these types of articles then. I pay a 20% of my net amount and don't mind that at all.My question to you is this. My order is set at what I was making in late 2013. Since then I have remarried and have a second (third overall) child on the way. My initial thoughts are to seek a higher salaried position but fear an attempted modification from my ex. The only reason I would go get another job is only to afford the anticipated $900/mo. increase in child care we're anticipating. What are your thoughts here? I should note that my ex has since received a big promotion post-divorce but I don't know the pay increase because she keeps forgetting to share her returns per our support agreement. Thanks!
Reply by Kevin O'Flaherty:
Thanks so much for reading and commenting, DJ. In assessing how to modify your child support, the court will take your increased expenses into account as well as any additional expenses associated with your remarriage. If the increase in pay is offset by your additional expenses, it is likely that your child support payments will not increase. Your ex's promotion may also be a factor in reducing your child support payments, and will be expecially important after the new law goes into effect on July 1, 2017. The court will assess your overall financial situation along with your wife's and the needs of your child in determining whether and how to modify your child support. Generally, I would say that in your situation you shouldn't be afraid to take the new job. Your child support payments may not increase, and if they do, they are not likely to consume the entire increase in pay you will be receiving.Given the additional expenses with your new family and your wife's promotion, you may want to consider retaining an attorney to run the numbers and advise you as to whether you may actually be able to have your child support payments reduced. I hope this answers your question. Please let me know if you have any follow up questions on this or any other topic. DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements.
Comment by Jenny:
Great article!I have a question though.How to modify a child support amount which is too high for the current net income, if previous ruling was based on child's needs and not on a certain net income? Thanks in advance!
Reply by Kevin O'Flaherty:
Thanks for the question, Jenny. Courts are permitted to deviate from the child support guidelines if it is in the "best interest of the child." However, even when courts deviate from the guidelines for the best interest of the child, the income of the obligor parent is still taken into consideration in determining the amount of the child support obligation. You can read a lot more about this topic here:https://www.oflaherty-law.com/our-law-blog/child-support-explainedPlease let me know if you have any further questions. Feel free to give us a call at (630)324-6666 or e-mail us at firstname.lastname@example.org for a free consultation to discuss specifics. DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements.
Comment by Vivica:
Hi there, so my fiancé is paying a child support order for his 9 year old. He pays faithfully, but his childs mother recently just asked for a modification. Now me and my fiancé have a 1 year old together now and I feel like that's very unfair of her to ask for more knowing that he has to make a living for himself and take care of another child. Of course I do not have a child support order on him for our 1 year old but can the judge take that into consideration? It may seem like I'm being cruel but we do so many things for his daughter outside of child support which is not a problem but my fiancé can't even get a decent amount on a home loan because of child support. It's really frustrating me, and then his childs mother tries to control their child as well but in reality, we're the ones really taking care of all of her needs.
Reply by Kevin O'Flaherty:
Thanks for your question, Vivica. I answered a similar question in this blog article: https://www.oflaherty-law.com/our-law-blog/how-is-child-support-calculated-for-multiple-families-in-illinois I hope this sheds some light on the subject. If you still have questions after reading the article, feel free to leave another comment or give me a call at (630)324-6666.
Comment by Albert Wesson:
Thank you for the informative article. The article states that “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%”. Does this 20% justification rule also hold when comparing current child support obligations against the upcoming post-July 2017 guidelines? If the new calculations are lower than the current payments by 20% or more, can a petition for modification be submitted even if there is no other substantial change in circumstance.
Reply by Kevin O'Flaherty:
Great question, Albert. You will bbe able to modify your child support obligation based on a 20% or greater deviation from the guidelines that will be in effect after July 1, 2017 even if there is no other substantial circumstance. DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements.
Reply to Kevin's O'Flaherty comment by Sandy:
What is a 20% justification rule? And does it refer to non marriage couple?
Reply by Kevin O'Flaherty to Sandy's Reply:
Thanks so much for your question, Sandy. Typically, you can not modify your existing child support order unless there is a "substantial change in circumstances." An exception to this rule is that you can seek to modify child support orders when there is NOT a substantial change in circumstances if the child support obligation in the existing order differs by a factor of 20% or more from the then-current child support guidelines. Please let me know if you have any further questions. Feel free to give us a call at (630)324-6666 or e-mail us at email@example.com for a free consultation to discuss specifics. DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements.
Comment by Julianne:
Hi Kevin,Your articles on the changes to the child support law are very well-written and informative. I just finished my 2L year and my summer internship is focused mainly on child support which is an issue I have no prior experience with so your articles have been a great help.I've been researching how the upcoming changes to the child support law will affect modification of existing child support orders and I'm at a bit of a loss. I was told to focus on Iowa (and Colorado, to a lesser extent) because it was apparently used as a model for the Illinois changes. Iowa lists the criteria for modification under I.C.A. 598.21C while Illinois does not offer any criteria for what constitutes a substantial change in circumstances justifying modification. As noted in your article, the law change is not itself a substantial change in circumstances, and a showing of a substantial change in circumstances is not necessary if the support order deviates 20% or more under the new guidelines.Based on my research so far, it seems like the substantial change in circumstances justifying modification already established by Illinois case law will remain the same after July 1, 2017. Am I missing something critical to understanding how substantial change in circumstances will be determined under the new guidelines? Any insight would be greatly appreciated.Thank you,Julianne
Reply by Kevin O'Flaherty:
Julianne:Thanks for reading the article and for the thoughtful question. Your analysis is correct that the new law will not change the definition of a "substantial change in circumstances" for the purpose of modifying child support orders, and that the change in the law, in and of itself, does not qualify as a substantial change in circumstances. Good luck with the rest of law school and with your internship! DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements.
Comment by Megan B
My fiancé and I currently have two kids together with another on the way, he has an older child as well in which he pays child support for. Now that he has two additional kids(3 eventually) could this play a part in his child support get decreased?
Reply by Kevin O'Flaherty
Thanks for your question, Megan. You may find this article helpful:https://www.oflaherty-law.com/our-law-blog/how-is-child-support-calculated-for-multiple-families-in-illinoisChild support obligations are typically only decreased by previous court-ordered child support obligations. Even though your fiancee now has additional children, this additional financial responsibility will not serve to decrease his pre-existing child support obligations. DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements.
Comment by Monica:
I read your post regarding the multi-family, but i am still confused a bit. I am remarried and my husband and I support his daughter from a previous marriage (she does not live with us, but we pay child support). My ex-husband has no other kids to support. Is this taken into account at all?
Reply by Kevin O'Flaherty:
Thanks for your question, Monica. Your spouse's income and child support obligations are generally not taken into account when calculating child support. Courts will only look at the net income of the obligor and the net income of the obligee when determining child support obligations. The only caveat is that prior child support obligations of the obligor serve to decrease the obligor's net income. I hope this answers your question, please let me know if you would like further clarification. DIsclaimer: Nothing in this post is intended to create an attorney client relationship. An attorney should be retained and consulted before taking any action based on these statements. If you would like a free consultation, feel free to give us a call at (630)324-6666.