In Illinois, to obtain a reduction in his or her child-support obligation, a parent must prove that there has been a substantial change in circumstances since the entry of the prior support order. 750 ILCS 5/510(a)(1).
The first step is to analyze your own income, has it changed from the date that the order for support was entered? And then is that change “substantial.” There is not a specific percentage that qualifies as substantial but I have had a few Cook County judges tell me 20% is the litmus test for substantiality.
Then we have to be assured that the change income was not voluntary AND in bad faith. In re Marriage of Sweet, 316 Ill. App. 3d 106.
An involuntary change of income, losing one’s job or a bad economy, is always acceptable.
A change in income can be voluntary but it cannot be in bad faith. For example, if you quit a job because of a hostile work environment that’s good faith. If, however, you quit your job solely to avoid paying child support, that is bad faith.
What if you quit your job because you realized you’d be happier at a lower-paying job? That’s going to be very hard and your lawyer will have to convince the judge that you’re acting purely on the basis of job satisfaction and not to avoid child support.
Since, the child support law changed in January of 2017 we now calculate child support based on an income shares model which uses both the non-custodial parent’s income and the custodial parent’s income. Therefore, a change in the custodial parent’s income might qualify as a “substantial change in circumstances.”
Your original support judgment should probably have included a clause requiring your ex-spouse and yourself to exchange W2s and tax returns annually. This will allow you to know if your spouse’s income has changed.
If you don’t have access to your ex-spouse’s income, then you’ll need to file a motion to modify child support based on “information and belief” that your ex-spouse’s income has changed substantially. The court will then allow you to issue discovery requests to your ex-spouse so you can discover his or her current income.
What if your spouse marries someone very wealthy or comes into some kind of fortune through inheritance or other source that doesn’t look like income? Well, this will be very tricky to difficult to change because income is defined in the statute as “gross income from all sources.” 750 ILCS 5/505(a)(3)(A). In my experience, you’ll have more success changing the contribution to the children’s expenses which are usually outside of the child support requirement. So, your petition should focus on that, if possible.
You may request that the court not follow the child support guidelines outlined by the statute but it is a very high bar to request this. Under the statute the court may only deviate from guidelines after considering: the financial resources and needs of the child; the financial resources and needs of the parents; the standard of living the child would have enjoyed had the marriage or civil union not been dissolved; and the physical and emotional condition of the child and his or her educational needs. 750 ILCS 5/505(a)(2).
Upon reading this list, you can see that deviations from the guidelines only serve to increase support not decrease support. However, most courts will let you deviate from the guidelines if the other party agrees. Your lawyer may be able to negotiate some kind of arrangement by offering some other kind of change the custodial parent wants for a non-guidelines support amount.
Finally, you can change your child support should one of your children turn 18 AND graduate from high school. You will always have to petition the court after these two events occur to modify your child support obligation. It does not occur automatically unless it is the youngest child turning 18 pursuant to a clause in the Illinois Uniform Order Of Support which states “This Obligation to pay child support terminates on (date) unless modified by written order of the Court or unless the child will not graduate from high school until after attaining the age of 18, then the termination date shall be the earlier of the child’s high school graduation or the date on which the child will attain the age of 19. This termination date does not apply to any arrearage that may remain unpaid on that date.”
As a caveat, your child support obligation is probably intimately tied to your obligation to pay maintenance or your spouse’s obligation to pay you maintenance. By asking the court to modify child support, you may trigger the court to consider other obligations in a global manner. In particular if you’re paying maintenance, your maintenance was calculated in advance of your child support obligation so when your maintenance obligation expires, your child support obligation should increase significantly. Most support orders do not include language to require this automatic increase.