Support and Maintenance

If you are the parent of a minor child and you are facing a divorce or paternity case in Illinois there are a few simple rules that explain it all.  Support related to the money that a non custodial (or non primary residential) parent pays to a custodial or residential parent for the basic needs of a child.  Let me point out that there is no difference in the liability of a parent in a divorce action or in a paternity action; it’s all the same (equal protection).  So what are the basic rules: support is a percentage of the non custodial parent’s net income?  In Illinois and many states there is a simple table that is called a minimum guide line support (I will discuss the word “minimum” later as well as define “net income”).

In Illinois one child gets 20%, two children 28%, three children 32%, 4 children 40%, 5 children 45% and over 5 children 50% of net income.  Simple enough, well define “net income” it’s whatever is left after the deduction of Federal and State Income Taxes, Medicare & Social Security Taxes, health insurance (for the child), union dues and a few other deductions.  If you think about it, with a 3% Illinois Tax, a 6.75 FICA & MEDICARE tax, and average tax rates of 20-22% you could very easily pay taxes of 30% of your income and with 3 children another 22.4%  (32% of the 70% that’s left after taxes). So that the average wage earner with 3 kids has to live on less than half of his/her gross income.  While that seems difficult for the wage earner, the supported spouse and 3 children are living on child support of approximately half of the gross income.  This does not include maintenance (alimony . . . spousal support); for child support, the custodial (or primary residential) parent’s income is not even considered.  

Alimony or Maintenance (spousal support in a kinder and gentler word) is the payment that a high earning spouse pays to a spouse that earns much less.  This is a lot more complicated.  In some of the county in Illinois there are informal formulas and in others the formula is not formalized, but none the less there.  It’s a function of the number of years of the marriage (from the date of marriage to the date of dissolution) and the difference between the spouses’ gross earnings (some places give consideration to child support, others don’t but use a lower amount);  the only rule here is that there is no alimony or maintenance in a paternity case and perhaps that is the only distinction between the married and unmarried in the family law courts beside the differences in the property and debt distribution.   But even there are exceptions to the rule.  In a paternity case which has long since started a trend in both paternity and divorce cases, the court gave the non custodial parent the obligation of splitting the day care child care expenses for the custodial parent.  While it can’t be called alimony, it can be as expensive and does not stop just because you are married (its is in addition to child support, maintenance, and extra ordinary expenses).

If all this seems confusing, then look at the tax treatment: child support is not tax deductable and maintenance is generally taxable to the recipient and deductable to the payor but even with that general rule, there are all the exceptions and variations to complex and lengthy to cover here…  This is where the expert hand of the attorney who has concentrated his/her practice in family law and has experience will prove valuable. Striking the proper combination of these elements is an art akin to the alchemist who learned to turn lead into gold.  

For those of you who like to read rules the following is the child support statutes that apply in Illinois:

 (750 ILCS 5/505) (from Ch. 40, par. 505)
    Sec. 505. Child support; contempt; penalties.
    (a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. For purposes of this Section, the term “child” shall include any child under age 18 and any child under age 19 who is still attending high school.
        (1) The Court shall determine the minimum amount of

    

support by using the following guidelines:

 

Number of Children

Percent of Supporting Party’s

 

Net Income

1

20%

2

28%

3

32%

4

40%

5

45%

6 or more

50%

        (2) The above guidelines shall be applied in each

    

case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors:

            (a) the financial resources and needs of the

        

child;

            (b) the financial resources and needs of the

        

custodial parent;

            (c) the standard of living the child would have

        

enjoyed had the marriage not been dissolved;

            (d) the physical and emotional condition of the

        

child, and his educational needs; and

            (e) the financial resources and needs of the

        

non‑custodial parent.

        If the court deviates from the guidelines, the

    

court’s finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.

        (3) “Net income” is defined as the total of all

    

income from all sources, minus the following deductions:

            (a) Federal income tax (properly calculated

        

withholding or estimated payments);

            (b) State income tax (properly calculated

        

withholding or estimated payments);

            (c) Social Security (FICA payments);
            (d) Mandatory retirement contributions required

        

by law or as a condition of employment;

            (e) Union dues;
            (f) Dependent and individual

        

health/hospitalization insurance premiums;

            (g) Prior obligations of support or maintenance

        

actually paid pursuant to a court order;

            (h) Expenditures for repayment of debts that

        

represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self executing modification upon termination of such payment period.

        (4) In cases where the court order provides for

    

health/hospitalization insurance coverage pursuant to Section 505.2 of this Act, the premiums for that insurance, or that portion of the premiums for which the supporting party is responsible in the case of insurance provided through an employer’s health insurance plan where the employer pays a portion of the premiums, shall be subtracted from net income in determining the minimum amount of support to be ordered.

        (4.5) In a proceeding for child support following

    

dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the supporting party’s net income for the prior period was the same as his or her net income at the time the order for current support is entered.

        (5) If the net income cannot be determined because

    

of default or any other reason, the court shall order support in an amount considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor’s net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.

        (6) If (i) the non‑custodial parent was properly

    

served with a request for discovery of financial information relating to the non‑custodial parent’s ability to provide child support, (ii) the non‑custodial parent failed to comply with the request, despite having been ordered to do so by the court, and (iii) the non‑custodial parent is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the non‑custodial parent’s ability to provide child support that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further foundation for its admission.