Big, bad things can happen in a parent’s life. A parent could lose their job, become seriously ill or go to prison. When something so serious happens in a parent’s life, what happens to their child support obligation?
Can child support be put on pause while the parent deals with their unemployment, injury, illness, or incarceration?
Abating Child Support In Illinois
Lawyer’s love words that only seem to ever apply in a legal sense. One of those words is “abatement.” So, a lawyer will propose to “abate” child support in lieu or saying “terminate” or “pause” child support.
Abatement is “the suspension or defeat of a pending action for a reason unrelated to the merits of the claim.” Black’s Law Dictionary (11th ed. 2019)
Just because there is a word for something does not make that word good law.
Abatement of child support used to be allowed in Illinois via Illinois Supreme Court Rule 296.
“Upon written petition of the obligor, and after due notice to obligee (and the Department of Public Aid, if the obligee is receiving public aid), and upon hearing by the court, the court may temporarily reduce or totally abate the payments of support, subject to the understanding that those payments will continue to accrue as they come due, to be paid at a later time. The reduction or abatement may not exceed a period of six months except that, upon further written petition of the obligor, notice to the obligee, and hearing, the reduction or abatement may be continued for an additional period not to exceed six months.” 134 Ill. 2d R. 296(f)
The committee comments were even nicer to child support payees who were down on their luck.
“This paragraph applies only to the short-term inability of the obligor to pay support due to a temporary layoff from employment or other factors. It recognizes that obligors often become temporarily unemployed, rendering them unable to meet their support obligations. This provision is short of a written modification of the Order for Support. It allows the obligor to petition the court, prior to the filing of a petition for adjudication of contempt, for an opportunity to repay those amounts in small increments after employment is regained.
This rule is contrary to the holding of the appellate court in Coons v. Wilder (1981), 93 Ill. App. 3d 127, [ 416 N.E.2d 785,] in which the court stated, `We find no statutory or case authority for the trial court to temporarily abate that portion of a support order the supporting parent is without means to presently pay * * *.’ [ Coons,] 93 Ill. App. 3d at 135[, 416 N.E.2d at 792].
The obligor has the option of filing for a modification of the Order for Support under section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510) [(now 750 ILCS 5/510 (West 2006))]. If a court may modify an Order for Support under section 510 of the Act, it follows that it may also temporarily abate the Order for Support, subject to accrual, during a period of temporary unemployment of the obligor.” 134 Ill. 2d R. 296(f), Committee Comments, at 225-26.
This kindness and understanding to the noncustodial parent who is down on his or her luck was not to last forever, though.
Abatement Of Child Support Is No Longer The Law In Illinois
On October 1, 2010, Rule 296 was repealed. (Note: there is a new Illinois Supreme Court Rule 296 which deals when you can restrain a defendant in court)
Children need to eat whether their parent has suffered misfortune or not.
“Illinois recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents under this Act.” 750 ILCS 45/1.1
“A parent’s duty to support his or her minor child is among the oldest principles of law.” People ex rel. Sheppard v. Money, 124 Ill.2d 265 at 269-70(1988).
Unless expressly provided in a court order, “the obligation to support a child only terminates upon the emancipation of the child.” Finley v. Finley, 81 Ill.2d 317, 325, 43 Ill.Dec. 12, 410 N.E.2d 12, 16 (1980).
Abatement of child support creates bad incentives.
“Noncustodial parents should not be allowed the opportunity to escape from paying support merely because they choose to remain unemployed. If anything, their obligation should encourage them to obtain employment sooner rather than later.” In re Marriage of Reimer, 902 NE 2d 132 – Ill: Appellate Court, 3rd Dist. 2009
Now, a noncustodial parent suffering from some misfortune can only modify NOT abate their child support obligation.
“An order for child support may be modified as follows: upon a showing of substantial change in circumstances,” 705 ILCS 5/510(a)(1),
Whatever misfortune would have triggered an abatement will surely qualify as a “substantial change in circumstances” in order to receive a modification of child support.
In fact, a modification of child support can be granted even “upon a showing of an inconsistency of at least 20%… between the amount of the existing order and the amount of child support that results from application of the [Illinois child support] guidelines” 750 ILCS 5/510(a)(2)(A)
The parents’ incomes will then be compared to the Illinois income shares guidelines and a new child support amount will be provided.
Even if the courts find that the non-custodial parent has no income there is still a minimum obligation to pay child support.
“There is a rebuttable presumption that a minimum child support obligation of $40 per month, per child, will be entered for an obligor who has actual or imputed gross income at or less than 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person, with a maximum total child support obligation for that obligor of $120 per month to be divided equally among all of the obligor’s children.” 750 ILCS 5/505(a)(3.3a)
Common Law Basis For Abatement Of Child Support
Perhaps the repeal of Rule 296 does not mean that abatement of child support is now impermissible. There is common law authority for abatement from before the original Rule 296 was put into place.
“[C]ourts have long possessed the authority to abate support under certain circumstances, even prior to Rule 296(f) being adopted [in 1989].” People ex Rel. Greene v. Young, 367 Ill. App. 3d 211, 216 (Ill. App. Ct. 2006)
“[C]hild support payments may properly be abated or reduced where an inability to pay results from involuntary loss of employment” Glass v. Peitchel, 42 Ill. App. 3d 240, 243 (Ill. App. Ct. 1976)
“Unless good faith is shown, a voluntary termination of employment by a supporting spouse is not considered a material change in circumstances sufficient to warrant abatement or modification of support obligations.” In re Marriage of Ebert, 81 Ill. App. 3d 44, 46-47 (Ill. App. Ct. 1980)
A child support “obligation [can be] abated during the six-week period of summer visitation.” Fedun v. Kuczek, 155 Ill. App. 3d 798, 803 (Ill. App. Ct. 1987)
It is one thing to know a rule. It is another thing to know that a rule did exist but no longer exists (but might still exist via common law). If you’d like to talk with a divorce lawyer who knows all the rules, contact my Chicago, Illinois family law firm today.
