Am I entitled to only 25% of my ex husbands pay for child support?
Full Question:
I have a friend that is going through a non-contested divorce. They have two children and has been told that the legal amount of child support that he has to pay is 25% of his gross income. She would like to know if this is still the law. Also, if he receives any pay increases, is she intitled to 25% of the pay increases or just the amount that he is making when the divorce is finalized?
05/14/2007 |
Category: Divorce ยป Child Support |
State: Illinois |
#4713
Answer:
The applicable Illinois statutes are as follows:
750 ILCS 5/502 (from Ch. 40, par. 502)
Sec. 502. Agreement. (a) To promote amicable settlement
of disputes between parties to a marriage attendant upon the
dissolution of their marriage, the parties may enter into a
written or oral agreement containing provisions for
disposition of any property owned by either of them,
maintenance of either of them and support, custody and
visitation of their children.
(b) The terms of the agreement, except those providing
for the support, custody and visitation of children, are
binding upon the court unless it finds, after considering the
economic circumstances of the parties and any other relevant
evidence produced by the parties, on their own motion or on
request of the court, that the agreement is unconscionable.
(c) If the court finds the agreement unconscionable, it
may request the parties to submit a revised agreement or upon
hearing, may make orders for the disposition of property,
maintenance, child support and other matters.
(d) Unless the agreement provides to the contrary, its
terms shall be set forth in the judgment, and the parties
shall be ordered to perform under such terms, or if the
agreement provides that its terms shall not be set forth in
the judgment, the judgment shall identify the agreement and
state that the court has approved its terms.
(e) Terms of the agreement set forth in the judgment
are enforceable by all remedies available for enforcement of
a judgment, including contempt, and are enforceable as
contract terms.
(f) Except for terms concerning the support, custody or
visitation of children, the judgment may expressly preclude
or limit modification of terms set forth in the judgment if
the agreement so provides. Otherwise, terms of an agreement
set forth in the judgment are automatically modified by
modification of the judgment.
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.
(a-5) In an action to enforce an order for support
based on the respondent's failure to make support payments as
required by the order, notice of proceedings to hold the
respondent in contempt for that failure may be served on the
respondent by personal service or by regular mail addressed
to the respondent's last known address. The respondent's last
known address may be determined from records of the clerk of
the court, from the Federal Case Registry of Child Support
Orders, or by any other reasonable means.
(b) Failure of either parent to comply with an order to
pay support shall be punishable as in other cases of
contempt. In addition to other penalties provided by law the
Court may, after finding the parent guilty of contempt, order
that the parent be:
(1) placed on probation with such conditions of probation
as the Court deems advisable;
(2) sentenced to periodic imprisonment for a period
not to exceed 6 months; provided, however, that the Court may
permit the parent to be released for periods of time during
the day or night to:
(A) work; or
(B) conduct a business or other self-employed occupation.
The Court may further order any part or all of the
earnings of a parent during a sentence of periodic
imprisonment paid to the Clerk of the Circuit Court or to the
parent having custody or to the guardian having custody of
the children of the sentenced parent for the support of said
children until further order of the Court.
If there is a unity of interest and ownership sufficient to
render no financial separation between a non-custodial parent
and another person or persons or business entity, the court
may pierce the ownership veil of the person, persons, or
business entity to discover assets of the non-custodial
parent held in the name of that person, those persons, or
that business entity. The following circumstances are
sufficient to authorize a court to order discovery of the
assets of a person, persons, or business entity and to compel
the application of any discovered assets toward payment on
the judgment for support:
(1) the non-custodial parent and the person, persons, or
business entity maintain records together.
(2) the non-custodial parent and the person, persons, or
business entity fail to maintain an arms length relationship
between themselves with regard to any assets.
(3) the non-custodial parent transfers assets to the
person, persons, or business entity with the intent to
perpetrate a fraud on the custodial parent.
With respect to assets which are real property, no order
entered under this paragraph shall affect the rights of bona
fide purchasers, mortgagees, judgment creditors, or other
lien holders who acquire their interests in the property
prior to the time a notice of lis pendens pursuant to the
Code of Civil Procedure or a copy of the order is placed of
record in the office of the recorder of deeds for the county
in which the real property is located.
The court may also order in cases where the parent is
90 days or more delinquent in payment of support or has been
adjudicated in arrears in an amount equal to 90 days
obligation or more, that the parent's Illinois driving
privileges be suspended until the court determines that the
parent is in compliance with the order of support. The court
may also order that the parent be issued a family financial
responsibility driving permit that would allow limited
driving privileges for employment and medical purposes in
accordance with Section 7-702.1 of the Illinois Vehicle Code.
The clerk of the circuit court shall certify the order
suspending the driving privileges of the parent or granting
the issuance of a family financial responsibility driving
permit to the Secretary of State on forms prescribed by the
Secretary. Upon receipt of the authenticated documents, the
Secretary of State shall suspend the parent's driving
privileges until further order of the court and shall, if
ordered by the court, subject to the provisions of
Section 7-702.1 of the Illinois Vehicle Code, issue a family
financial responsibility driving permit to the parent.
In addition to the penalties or punishment that may be
imposed under this Section, any person whose conduct
constitutes a violation of Section 15 of the Non-Support
Punishment Act may be prosecuted under that Act, and a person
convicted under that Act may be sentenced in accordance with
that Act. The sentence may include but need not be limited to
a requirement that the person perform community service under
Section 50 of that Act or participate in a work alternative
program under Section 50 of that Act. A person may not be
required to participate in a work alternative program under
Section 50 of that Act if the person is currently
participating in a work program pursuant to Section 505.1 of
this Act.
A support obligation, or any portion of a support
obligation, which becomes due and remains unpaid as of the
end of each month, excluding the child support that was due
for that month to the extent that it was not paid in that
month, shall accrue simple interest as set forth in
Section 12-109 of the Code of Civil Procedure. An order for
support entered or modified on or after January 1, 2006 shall
contain a statement that a support obligation required under
the order, or any portion of a support obligation required
under the order, that becomes due and remains unpaid as of
the end of each month, excluding the child support that was
due for that month to the extent that it was not paid in that
month, shall accrue simple interest as set forth in
Section 12-109 of the Code of Civil Procedure. Failure to
include the statement in the order for support does not
affect the validity of the order or the accrual of interest
as provided in this Section.
(c) A one-time charge of 20% is imposable upon the
amount of past-due child support owed on July 1, 1988 which
has accrued under a support order entered by the court. The
charge shall be imposed in accordance with the provisions of
Section 10-21 of the Illinois Public Aid Code and shall be
enforced by the court upon petition.
(d) Any new or existing support order entered by the
court under this Section shall be deemed to be a series of
judgments against the person obligated to pay support
thereunder, each such judgment to be in the amount of each
payment or installment of support and each such judgment to
be deemed entered as of the date the corresponding payment or
installment becomes due under the terms of the support order.
Each such judgment shall have the full force, effect and
attributes of any other judgment of this State, including the
ability to be enforced. A lien arises by operation of law
against the real and personal property of the noncustodial
parent for each installment of overdue support owed by the
noncustodial parent.
(e) When child support is to be paid through the clerk
of the court in a county of 1,000,000 inhabitants or less,
the order shall direct the obligor to pay to the clerk, in
addition to the child support payments, all fees imposed by
the county board under paragraph (3) of subsection (u) of
Section 27.1 of the Clerks of Courts Act. Unless paid in cash
or pursuant to an order for withholding, the payment of the
fee shall be by a separate instrument from the support
payment and shall be made to the order of the Clerk.
(f) All orders for support, when entered or modified,
shall include a provision requiring the obligor to notify the
court and, in cases in which a party is receiving child and
spouse services under Article X of the Illinois Public Aid
Code, the Illinois Department of Public Aid, within 7 days,
(i) of the name and address of any new employer of the
obligor, (ii) whether the obligor has access to health
insurance coverage through the employer or other group
coverage and, if so, the policy name and number and the names
of persons covered under the policy, and (iii) of any new
residential or mailing address or telephone number of the
non-custodial parent. In any subsequent action to enforce a
support order, upon a sufficient showing that a diligent
effort has been made to ascertain the location of the
non-custodial parent, service of process or provision of
notice necessary in the case may be made at the last known
address of the non-custodial parent in any manner expressly
provided by the Code of Civil Procedure or this Act, which
service shall be sufficient for purposes of due process.
(g) An order for support shall include a date on which
the current support obligation terminates. The termination
date shall be no earlier than the date on which the child
covered by the order will attain the age of 18. However, if
the child will not graduate from high school until after
attaining the age of 18, then the termination date shall be
no earlier than the earlier of the date on which the child's
high school graduation will occur or the date on which the
child will attain the age of 19. The order for support shall
state that the termination date does not apply to any
arrearage that may remain unpaid on that date. Nothing in
this subsection shall be construed to prevent the court from
modifying the order or terminating the order in the event the
child is otherwise emancipated.
(g-5) If there is an unpaid arrearage or delinquency
(as those terms are defined in the Income Withholding for
Support Act) equal to at least one month's support obligation
on the termination date stated in the order for support or,
if there is no termination date stated in the order, on the
date the child attains the age of majority or is otherwise
emancipated, the periodic amount required to be paid for
current support of that child immediately prior to that date
shall automatically continue to be an obligation, not as
current support but as periodic payment toward satisfaction
of the unpaid arrearage or delinquency. That periodic payment
shall be in addition to any periodic payment previously
required for satisfaction of the arrearage or delinquency.
The total periodic amount to be paid toward satisfaction of
the arrearage or delinquency may be enforced and collected by
any method provided by law for enforcement and collection of
child support, including but not limited to income
withholding under the Income Withholding for Support Act.
Each order for support entered or modified on or after the
effective date of this amendatory Act of the 93rd General
Assembly must contain a statement notifying the parties of
the requirements of this subsection. Failure to include the
statement in the order for support does not affect the
validity of the order or the operation of the provisions of
this subsection with regard to the order. This subsection
shall not be construed to prevent or affect the establishment
or modification of an order for support of a minor child or
the establishment or modification of an order for support of
a non-minor child or educational expenses under Section 513
of this Act.
(h) An order entered under this Section shall include a
provision requiring the obligor to report to the obligee and
to the clerk of court within 10 days each time the obligor
obtains new employment, and each time the obligor's
employment is terminated for any reason. The report shall be
in writing and shall, in the case of new employment, include
the name and address of the new employer. Failure to report
new employment or the termination of current employment, if
coupled with nonpayment of support for a period in excess of
60 days, is indirect criminal contempt. For any obligor
arrested for failure to report new employment bond shall be
set in the amount of the child support that should have been
paid during the period of unreported employment. An order
entered under this Section shall also include a provision
requiring the obligor and obligee parents to advise each
other of a change in residence within 5 days of the change
except when the court finds that the physical, mental, or
emotional health of a party or that of a child, or both,
would be seriously endangered by disclosure of the party's
address.
(i) The court does not lose the powers of contempt,
driver's license suspension, or other child support
enforcement mechanisms, including, but not limited to,
criminal prosecution as set forth in this Act, upon the
emancipation of the minor child or children.
750 ILCS 5/510 (from Ch. 40, par. 510)
Sec. 510. Modification and termination of provisions
for maintenance, support, educational expenses, and property
disposition.
(a) Except as otherwise provided in paragraph (f) of
Section 502 and in subsection (b), clause (3) of
Section 505.2, the provisions of any judgment respecting
maintenance or support may be modified only as to
installments accruing subsequent to due notice by the moving
party of the filing of the motion for modification. An order
for child support may be modified as follows:
(1) upon a showing of a substantial change in circumstances;
and
(2) without the necessity of showing a substantial
change in circumstances, as follows:
(A) upon a showing of an inconsistency of at least 20%, but
no less than $10 per month, between the amount of the
existing order and the amount of child support that results
from application of the guidelines specified in Section 505
of this Act unless the inconsistency is due to the fact that
the amount of the existing order resulted from a deviation
from the guideline amount and there has not been a change in
the circumstances that resulted in that deviation; or
(B) Upon a showing of a need to provide for the health care
needs of the child under the order through health insurance
or other means. In no event shall the eligibility for or
receipt of medical assistance be considered to meet the need
to provide for the child's health care needs.
The provisions of subparagraph (a)(2)(A) shall apply
only in cases in which a party is receiving child support
enforcement services from the Illinois Department of Public
Aid under Article X of the Illinois Public Aid Code, and only
when at least 36 months have elapsed since the order for
child support was entered or last modified.
(a-5) An order for maintenance may be modified or
terminated only upon a showing of a substantial change in
circumstances. In all such proceedings, as well as in
proceedings in which maintenance is being reviewed, the court
shall consider the applicable factors set forth in
subsection (a) of Section 504 and the following factors:
(1) any change in the employment status of either
party and whether the change has been made in good faith;
(2) the efforts, if any, made by the party receiving
maintenance to become self-supporting, and the reasonableness
of the efforts where they are appropriate;
(3) any impairment of the present and future earning
capacity of either party;
(4) the tax consequences of the maintenance payments
upon the respective economic circumstances of the parties;
(5) the duration of the maintenance payments previously
paid (and remaining to be paid) relative to the length of the
marriage;
(6) the property, including retirement benefits, awarded to
each party under the judgment of dissolution of marriage,
judgment of legal separation, or judgment of declaration of
invalidity of marriage and the present status of the
property;
(7) the increase or decrease in each party's income
since the prior judgment or order from which a review,
modification, or termination is being sought;
(8) the property acquired and currently owned by each party
after the entry of the judgment of dissolution of marriage,
judgment of legal separation, or judgment of declaration of
invalidity of marriage; and
(9) any other factor that the court expressly finds
to be just and equitable.
(b) The provisions as to property disposition may not
be revoked or modified, unless the court finds the existence
of conditions that justify the reopening of a judgment under
the laws of this State.
(c) Unless otherwise agreed by the parties in a written
agreement set forth in the judgment or otherwise approved by
the court, the obligation to pay future maintenance is
terminated upon the death of either party, or the remarriage
of the party receiving maintenance, or if the party receiving
maintenance cohabits with another person on a resident,
continuing conjugal basis.
(d) Unless otherwise provided in this Act, or as agreed
in writing or expressly provided in the judgment, provisions
for the support of a child are terminated by emancipation of
the child, or if the child has attained the age of 18 and is
still attending high school, provisions for the support of
the child are terminated upon the date that the child
graduates from high school or the date the child attains the
age of 19, whichever is earlier, but not by the death of a
parent obligated to support or educate the child. An existing
obligation to pay for support or educational expenses, or
both, is not terminated by the death of a parent. When a
parent obligated to pay support or educational expenses, or
both, dies, the amount of support or educational expenses, or
both, may be enforced, modified, revoked or commuted to a
lump sum payment, as equity may require, and that
determination may be provided for at the time of the
dissolution of the marriage or thereafter.
(e) The right to petition for support or educational
expenses, or both, under Sections 505 and 513 is not
extinguished by the death of a parent. Upon a petition filed
before or after a parent's death, the court may award sums of
money out of the decedent's estate for the child's support or
educational expenses, or both, as equity may require. The
time within which a claim may be filed against the estate of
a decedent under Sections 505 and 513 and subsection (d) and
this subsection shall be governed by the provisions of the
Probate Act of 1975, as a barrable, noncontingent claim.
(f) A petition to modify or terminate child support,
custody, or visitation shall not delay any child support
enforcement litigation or supplementary proceeding on behalf
of the obligee, including, but not limited to, a petition for
a rule to show cause, for non-wage garnishment, or for a
restraining order.