Income is the determinator for both child support and maintenance in an Illinois divorce.
However, what happens if a party to a divorce income goes up? Does child support and/or maintenance go up if a party’s income increases?
How Do You Know If Your Spouse’s Income Has Increased After An Illinois Divorce?
Typically, a Marital Settlement Agreement will require the parties to exchange tax information to verify their current incomes.
If not, a party can allege an increase in income in a motion to modify support based on a presumed increase in income. At that point, the other party must disclose their income by tendering a fresh financial affidavit.
“In all post-judgment proceedings in which a party is seeking to establish, modify or enforce an order of maintenance, child support, support for educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, or attorney’s fees or costs, the parties shall exchange a completed “Financial Affidavit” unless either party files a written objection with the court and shows good cause why such exchange should not be required.” Cook County Rule 13.3.1(b)
Modifying Maintenance After An Increase in Income After An Illinois Divorce
Maintenance (formerly known as alimony) will have been set in the final Marital Settlement Agreement. That maintenance amount can only be modified after a court finds a substantial change in circumstances.
“[M]aintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
A substantial change in circumstances for the purposes of support “means that either the needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed.” In re Marriage of Anderson, 951 NE 2d 524 – Ill: Appellate Court, 1st Dist., 5th Div. 2011
The party requesting the modification must prove the substantial change in circumstances.
“The party seeking the modification has the burden to prove that a substantial change in circumstances has occurred.” In re Marriage of Osseck, 183 NE 3d 980 – Ill: Appellate Court, 2nd Dist. 2021
Proving an increase in income is not rocket science. Just show the court the current tax returns, pay stubs, and/or income statements.
“In all [maintenance modification] 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” 750 ILCS 5/510(a-5)(emphasis mine)
Per 750 ILCS 5/510(a-5), the factors in 750 ILCS 5/504 may also be considered by a court when modifying maintenance. Those factors are: “(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504
Income increase is mentioned in 750 ILCS 5/510(a-5) and income is mentioned four times in the 750 ILCS 5/504 factors….but an increase in income alone is probably not enough to merit an increase in maintenance.
An increase in income does not automatically mean an increase in maintenance to the former spouse.
“[T]he fact that [a former spouse] now earns a much greater salary [is not] determinative of [the other spouse’s] petition to increase maintenance…The law does not require a party to pay more maintenance merely because he or she can do so.” In re Marriage of Brunke, 141 NE 3d 1186 – Ill: Appellate Court, 2nd Dist. 2019
Instead the increases in maintenance are only “appropriate to ensure that a former spouse maintains the standard of living established during the marriage.” In re Marriage of Brunke, 141 NE 3d 1186 – Ill: Appellate Court, 2nd Dist. 2019
To necessitate an increase in maintenance, a need must be demonstrated by the maintenance payee.
“Having failed to demonstrate a material or substantial change in their relative positions, the trial court did not abuse its discretion in refusing to modify the original maintenance award.” In re Marriage of Plotz, 594 NE 2d 366 – Ill: Appellate Court, 3rd Dist. 1992
By the same logic the increase of the income of a maintenance payee would reduce their maintenance because they have less of a need for maintenance. Likely, their maintenance would be reduced pursuant to the guidelines calculation based on both parties incomes.
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)
Of course, an increase in the maintenance payee’s income bring the maintenance payee dangerously close to the 40% total income where no maintenance is paid.
“The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)
Modifying Child Support After An Increase in Income
Child support modifications work completely differently than maintenance modifications. A substantial change in circumstances only required sometimes for child support modifications.
“An order for child support may be modified as follows: (1) upon a showing of a substantial change in circumstances….[or] 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” 750 ILCS 5/510(a)(1),(2)
Any income increase that would increase child support by 20% of the current amount is sufficient to allow a modification of child support after an Illinois divorce.
The fastest way to determine if you are beyond 20% is to estimate using the Illinois Health and Family Services free child support estimator.
To know for certain if child support would increase by at least 20% based on the parent’s incomes, use Family Law Software.
If the income increase would not create a 20% increase, a finding of substantial change in circumstances must be made.
“Every time a paying parent’s income increases it does not mean that child support payments increase in a like percentage. The petitioning party must show that there has been a material change in circumstances.” In re Marriage of Plotz, 594 NE 2d 366 – Ill: Appellate Court, 3rd Dist. 1992
The increase in income must be large compared to the other parent’s income for their to be a modification of child support. “[A]n increase in a custodial parent’s income will not be considered a substantial change in circumstances where the increase is small compared to the noncustodial parent’s income.” In re Marriage of Connelly, 2020 IL App (3d) 180193
Modifying Maintenance And Child Support After An Increase In Income
Many people pay their ex-spouse both child support and maintenance.
Modifying both child support and maintenance requires the exact same test. A substantial change in circumstances for child support is a sufficient substantial change in circumstances for maintenance…and vice versa. The “standard is one and the same: no substantial change as to warrant a modification of maintenance means there has been no substantial change to warrant modification for child support.” MARRIAGE OF RODGERS AND RODGERS, 2022 IL App (2d) 210728 – Ill: Appellate Court, 2nd Dist. 2022(Rule 23 Case)
Alas, after an Illinois divorce a “rising tide” may not “lift all boats.” Still, you should consider all your options in light of your good fortune or your ex-spouse’s. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.