Posted on March 7, 2021

A New Spouse’s Income After An Illinois Divorce

At the moment an Illinois divorce is registered, the final court documents capture a moment in time. A moment where both parties are unmarried…but they won’t be for long. People who get divorced usually get married again. A remarriage means an entangling of a spouse’s finances with their new spouse. How does a new spouse’s income affect maintenance, child support and other matters after an Illinois divorce?

Initially, a Marital Settlement Agreement and an Allocation of Parenting Time and Parental Responsibilities will govern the divorced couple. As time passes, either couple may petition for a modification of the terms of either of those two documents.

Division of assets will have been finalized in the initial divorce documents so the only thing to modify is the remaining child support and maintenance (formerly known as alimony) provisions.

“[T]he 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.” 750 ILCS 5/510(a)

A modification of support shall only be made“upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a)(1)

Is A New Spouse A Substantial Change In Circumstances For Purposes of Support Modification In Illinois?

A remarriage of either parent will probably qualify as a substantial change in circumstances and thus allow the Illinois divorce court to consider a modification of support.

“To determine whether there has been a substantial change in circumstances, the court should take a holistic view of the parent’s financial position and consider all financial resources, including assets and even the financial status of a new spouse.” Verhines, 2018 IL App (2d) 171034 ¶ 81

A New Spouse’s Income And Child Support In Illinois

In Illinois child support is calculated using both parent’s incomes.

“Computation of basic child support obligation. The court shall compute the basic child support obligation by taking the following steps:

(A) determine each parent’s monthly net income;

(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;

(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and

(D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5050(a)(1.5)

So, either parent having a new spouse would be additional income into that household and, theoretically, be a basis for a modification of child support in Illinois. But, that’s not how it really works.

“[T]he traditional rule had been that the financial assets of the current spouse are not relevant in making a support determination…However, there is clearly a current trend in the case law moving away from the traditional rule of law on this issue.” Street v. Street, 756 NE 2d 887 – Ill: Appellate Court, 3rd Dist. 2001

Debts to an ex-spouse are not the debts of the current spouse. “Neither husband or wife…shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” 750 ILCS 65/5

For child support, a new spouse’s income will NOT be considered in determining the amount of said child support.

“[T]he financial status of a divorced parent’s current spouse should not be considered in determining the ability of that spouse to fulfill his or her duty to support.” Robin v. Robin, 359 NE 2d 809 – Ill: Appellate Court, 1st Dist. 1977

“[T]he financial status of the custodial parent’s current spouse is not considered in a proceeding to modify support because the new spouse has no legal obligation for the support of his or her step children.” Street v. Street, 756 NE 2d 887 – Ill: Appellate Court, 3rd Dist. 2001

While you cannot include a new spouse’s income as income for the purposes of increasing child support, an Illinois divorce court can consider the parent’s obligation to that new spouse and new children in order to maintain or even reduce child support.

“The financial status of a current spouse may not be considered to ascertain the ability of a party to fulfill a child support obligation, but it may be equitably considered to determine whether the payment of child support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs.” In re Marriage of Keown, 587 NE 2d 644 – Ill: Appellate Court, 4th Dist. 1992

The rule that a new spouse’s income MAY be considered for support in Illinois gets murkier.

“To the extent that the current spouse of the payee has income or assets which are or can be used to contribute to the living expenses of the payee, his or her income and assets should be considered by the court in making its determination regarding the amount the payee is able to contribute to the child’s education. Certainly, we are not saying that the new spouse of a parent is obligated to pay for the child’s education, but only that to the extent the new spouse contributes to the expenses which would otherwise be paid by the parent, the new spouse’s income and assets are relevant.” Street v. Street, 756 NE 2d 887 – Ill: Appellate Court, 3rd Dist. 2001

“It [is] therefore necessary and appropriate for the trial court to consider [a new spouse’s] income to the extent that [their] assistance frees up [the parent’s] own assets for contribution.” In re MM, 29 NE 3d 1197 – Ill: Appellate Court, 2nd Dist. 2015

“A trial court may look at the financial status of a party’s new spouse only to the extent that the new spouse actually contributes to the expenses claimed by the party in the maintenance proceeding to determine a party’s ability to pay maintenance. Of course, there must be evidence in the record of such contributions. I believe it is improper for a court to assume that a party’s new spouse contributes to such expenses based only on the fact that the two are married.” Thurston v. Thurston, 633 NE 2d 118 – Ill: Appellate Court, 3rd Dist. 1994 (2-1 BARRY dissenting)

So, a new spouse’s income may be considered if that new spouse is paying for expenses that should free up income from the actual parent for the purposes of paying child support.

An Illinois court does not need to use the guidelines formula. “The court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.4)

A wealthy new spouse may allow for new resources to be available to the parent of a child as that would change the “the financial resources and needs of the parents” 750 ILCS 5/505(a)(2)(b)

“The legislature’s use of the term ‘resources’ in section 505(a)(2)(b) indicate[s] that the legislature intended to allow the court to consider all the money or property to which the supporting parent had access, including a spouse’s income, in determining whether to deviate from the minimum guidelines.” Rushing, 2018 IL App (5th)

New Children And Child Support After An Illinois Divorce

If a parent has a new child after their divorce is entered in Illinois, that new child’s existence will be a “substantial change of circumstance” that would warrant a modification of child support.

If the parent is paying child support for the new child, that child support amount shall cause a downwards modification in the child support for the older children (and vice versa)

“If a parent is also legally responsible for support of a child not shared with the other parent and not subject to the present proceeding, there shall be an adjustment to net income as follows:

Multi-family adjustment with court order. The court shall deduct from the parent’s net income the amount of child support actually paid by the parent pursuant to a support order unless the court makes a finding that it would cause economic hardship to the child.” 750 ILCS 5/505(a)(3)(F)(I)(i)

If there is no child support order for the new child, a modification of child support for the older children may still be possible.

“Multi-family adjustment without court order. Upon the request or application of a parent actually supporting a presumed, acknowledged, or adjudicated child living in or outside of that parent’s household, there shall be an adjustment to child support. The court shall deduct from the parent’s net income the amount of financial support actually paid by the parent for the child or 75% of the support the parent should pay under the child support guidelines (before this adjustment), whichever is less, unless the court makes a finding that it would cause economic hardship to the child. The adjustment shall be calculated using that parent’s income alone.” 750 ILCS 5/505(a)(3)(F)(I)(ii)

Without a child support order, child support will be presumed at 75% of what an actual court order would award or what the parent is actually providing to the new parent. Whichever amount is lower will be the adjustment.

A New Spouse’s Income And Maintenance After An Illinois Divorce

For the person receiving maintenance, a new spouse will mean the termination of their maintenance award no matter what the new spouse’s income.

“[T]he obligation to pay future maintenance is terminated upon…the remarriage of the party receiving maintenance” 750 ILCS 510(c)

Even a marriage-like relationship where the maintenance-receiver lives with someone will terminate their maintenance award.

“[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 510(c)

A maintenance payor’s maintenance payment will likely not be modified by their own remarriage. A new marriage means new financial responsibilities, but the first family’s obligations will remain the maintenance payor’s priority under Illinois law.

“Obligations to a payor husband’s former wife take precedence over obligations arising from the ex-husband’s new marriage. A paying spouse’s remarriage and expenses incurred in setting up a new household are not proper factors for the court’s consideration in determining whether to modify or terminate maintenance. A payor’s voluntary acceptance of nonlegal obligations are not to be considered in deciding whether maintenance should be modified or terminated.” In re Marriage of Kuper, 2019 IL App (3d) 180094 (citations omitted)

College Expenses And A New Spouse’s Income And Assets

In Illinois, parents are responsible for their children’s college expenses even after the child support obligation is complete.

“The court may award sums of money out of the property and income of either or both parties …the educational expenses of any child of the parties.” 750 ILCS 5/513(a)

In the case of college expenses, an Illinois divorce court can consider a new spouse’s income or assets to the extent that the parent has access to them.

“The plain language of section 513(b)(1) states that the trial court shall consider “the financial resources of both parents.” 750 ILCS 5/513(b)(1) (West 1998). The term “resources” has been defined as “[m]oney or any property that can be converted to meet needs” as well as the “available means or capability of any kind.” Black’s Law Dictionary 1179 (5th ed.1979). Based on the use of the word “resources,” rather than a more narrow term, such as “income” or “salary,” we believe that the legislature intended that the trial court consider all the money or property to which a parent has access. This may include that parent’s income, her property and investment holdings, as well as money or property that could be available to her through her new spouse.” In re Marriage of Drysch, 732 NE 2d 125 – Ill: Appellate Court, 2nd Dist. 2000

A new spouse probably means new children as well. Illinois divorce courts can consider the expenses of the new children in order to mitigate the required contribution to the older children’s college expenses.

“Without underestimating the importance of the “first” children’s needs and expectations, we cannot state unequivocally that their college expenses take precedence over the needs of their father’s “second,” minor children…Realistically, it is likely that both parties pool their resources with those of their second spouses, so that their assets and liabilities are substantially intertwined. Allowing the parties to submit detailed information of their finances will permit the trial court to reach a more principled, and thus more equitable, determination of the share that each party should contribute.” Greiman v. Friedman, 414 NE 2d 77 – Ill: Appellate Court, 1st Dist. 1980

If your ex-spouse got remarried and you’re being governed by an Illinois Judgment of Dissolution of Marriage, you may be able to adjust the support you’re paying or receiving. Likewise, if you’re getting remarried, that remarriage may be grounds for a modification of support. To learn more, contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Chicago divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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