Child support in Illinois is always owed from one parent to another when they are no longer parenting together or haven’t come to some kind of agreement that waives child support. When does the obligation of child support begin and how does the obligor parent pay the back child support owed?
Back child support (also known as retroactive child support) can be a thing whether an existing Illinois child support order exists or not.
If a child support order already exists, it is easy to calculate the back child support owed: Compare what was supposed to be paid to what actually get paid. The difference is the back child support owed.
Note that while it is presumed that the father did at least something for the child (ex: bought diapers, paid rent) before the motion for child support was filed. These contributions are nice but they don’t count towards back child support. “The general rule is no credit is given for voluntary overpayments of child support, even if made under the mistaken belief that they are legally required. ” In re Marriage of Tollison, 208 Ill. App. 3d 17, 19-20 (Ill. App. Ct. 1991)
To calculate back child support in a fresh divorce or parentage case is a more complicated endeavor that a court is empowered to order…to an extent.
“The decision to award retroactive child support rests within the sound discretion of the trial court.” In re Marriage of Sawicki, 806 NE 2d 701 – Ill: Appellate Court, 3rd Dist. 2004
Back Child Support When The Parents Are Not Married.
No one has ever filed for child support before the child was born. Yet, the child needed to be fed, clothed and housed before a child support order was ever entered. Whose responsibility was it to provide for the child before the matter got to court? It was both parents’ responsibility. The Illinois statute recognizes this mutual responsibility in both the present and the past for unmarried parents.
The Illinois Parentage Act of 2015 handles issues between parents who are unmarried. While the Illinois Parentage Act points unmarried parents to the exact same laws for calculating child support the rule for when child support begins for unmarried parents is different than the rule for married parents.
For unmarried parents, “[t]he court may order child support payments to be made for a period prior to the commencement of the action. In determining whether and to what extent the payments shall be made for the prior period,” 750 ILCS 46/802
So, an unmarried parent can ask for child support now, in the future…and in the past.
Well before the Illinois Parentage Act of 2015, Illinois family law courts were encouraging retroactive child support.
“There is no reason child support should not have been ordered retroactive to the date of birth of the child. Any other decision would encourage delay tactics in litigation and defeat the obvious intent of the legislature.” Carnes v. Dressen, 574 NE 2d 845 – Ill: Appellate Court, 4th Dist. 1991
The factors for determining the past child support will have “the court…consider all relevant facts, including but not limited to
…
[t]he factors for determining the amount of support specified in the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 42/86(e)(1)
So, you calculate retroactive child support in the same amount that you would current child support. So, if you were making more money or less money last year, you should pay retroactive child support based on that previous income. But, a parent (or their attorney) must bring this up to the Illinois family law court in order to modify the amount of back child support.
“[T]here is a rebuttable presumption that the net income of the person obligated to pay support for the prior period was the same as the net income of the person obligated to pay support at the time the order for current child support is entered” 750 ILCS 42/86(e)
If you or your attorney don’t bring up the different past income, the Illinois family law court will just use the current income to calculate the back child support.
“The prior knowledge of the person obligated to pay support of the fact and circumstances of the child’s birth.”750 ILCS 42/86(e)(2)
So, if you had no knowledge of a child and you were served with child support papers on the child’s 17th birthday, you would not be obligated to pay retroactive child support for the last 17 years under Illinois law.
“In determining whether and to what extent the payments shall be made for the prior period, the court shall consider all relevant facts, including but not limited to:
…
“The father’s prior willingness or refusal to help raise or support the child” 750 ILCS 46/802(e)(3)
Usually, an Illinois family court judge will want to know when the two unmarried parents stopped living together. That usually becomes the effective date when child support will begin.
If the parents never lived together, the obligor parent should expect to pay child support retroactively to the date of birth of the child.
While this part of the statute says “father”, it really could be either parent. There is a lot of sexist language in the Illinois statutes.
“The extent to which the mother or the public agency bringing the action previously informed the person obligated to pay support of the child’s needs or attempted to seek or require the help of the person obligated to pay support in raising or supporting the child.” 750 ILCS 42/86(e)(4)
AND
“The reasons the mother or the public agency did not file the action earlier” 750 ILCS 42/86(e)(5)
If Illinois’ public aid ever got involved to try to find a father or mother who needed to contribute to the child’s well being…because the public agency was busy being the provider instead, the back child support will go back to that day when that public agency got involved.
There is one exception to this obligation of back child support by an unmarried parent.
“After hearing evidence, the court may stay payment of support during the period of the father’s minority or period of disability.” 750 ILCS 42/86(i)
“Minority” in this portion of the statute refers to “the age of minority” which means under the age of 18.
“Disability” could mean anything. A parent who is unemployed or in school could argue that qualifies as a “disability” under this section of the statute.
To argue against past support remind the judge that awarding back support is, essentially, a retroactive modification of child support…which is not allowed under Illinois law.
“[T]he trial court may retroactively modify a child support award to the date of the filing of the petition to modify.” In re Marriage of Sweet, 316 Ill. App. 3d 101, 109 (2000).
Back Child Support For Married Couples In Illinois
The myriad of rules that were described above regarding back child support do NOT apply for married couples in Illinois. In Illinois, Married couples can only ask for back child support from the date of filing their motion for support.
If child support is requested in the Petition For Dissolution of Marriage, then child support can be awarded back to the date of the filing of that Petition.
“[T]he circuit court [has] the statutory authority to award…maintenance and child support from the date of [the] request in the petition for dissolution, with appropriate credit given for the temporary payments” In re Marriage of Hochstatter, 2020 IL App (3d) 190132
The presumption is that if you were married, you were probably supporting your children. If you weren’t supporting your children, then your husband or wife should have filed for divorce and pursued their subsequent child support rights through the legal process.
The only exception under the Illinois statute is as follows:
“In a proceeding for child support following dissolution of the marriage or civil union 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 obligor’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.” 750 ILCS 5/505(a)(4.5)
Back child support (also known as retroactive child support) can be pursued before the service of the divorce papers only when the absconding parent refuses to be served with divorce papers.
Retroactive child support claims will often be accompanied by retroactive maintenance (formerly known as alimony) claims. “A retroactive allowance of support is within the discretionary power of the trial court if such allowance is deemed fit, reasonable and just; and that this holds true not only in a divorce proceeding but also in a separate maintenance case” Plant v. Plant, 312 NE 2d 847 – Ill: Appellate Court, 5th Dist. 1974
Back Child Support When A Child Support Order Has Already Been Entered In An Illinois Family Law Court.
If a child support order already exists and child support is owed by the noncustodial parent then Illinois law states a delinquency exists.
“”Delinquency” means any payment, including a payment of interest, under an order for support which becomes due and remains unpaid after entry of the order for support.” 750 ILCS 28/1
If the child is under 18 or 19 and has not graduated from high school, the child support obligation still exists and must be paid on a current basis. The past due delinquent child support must be paid at minimum rate of 20% of the current support.
“The amount for payment of delinquency shall not be less than 20% of the total of the current support amount and the amount to be paid periodically for payment of any arrearage stated in the order for support” 750 ILCS 28/20(a)(2)
So, if you owed $ 1000 a month in current child support but you missed child support payments for a year so had an arrearage of $ 17,000 in child support payments, you’d have to pay a total of $ 1200 a month ongoing. That’s $ 1000 in current child support and $ 200 towards the delinquency.
If you do the math, (12,000/200), it will take the child support obligor 5 years to pay off one year of child support with just the 20% delinquency.
The parent who is owed child support is not locked into 20% and can always ask the court for the delinquency payment to be higher.
If the child does turn 18 or 19 without graduating from high school, the non-custodial obligor parent must continue paying the full current child support amount plus the delinquency payment until the arrearage is paid.
“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.” 750 ILCS 5/505(g-5)
Using the same example of someone who missed a year of $ 1000 payments, they would quickly catch up within 10 months at their current + delinquency payment of $ 1200.
You can ask for all of the money up front if the parent who is behind on their child support has the money. “[A] spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered.” Finley v. Finley, 410 NE 2d 12 – Ill: Supreme Court 1980
In lieu of a payment plan, the judgment of child support owed is an automatic lien you can take to a collections attorney in Illinois who can then seize the non-custodial obligor parent’s things.
“[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.” 750 ILCS 5/46(b), 750 ILCS 5/505(d)
In my experience, this rarely ever happens in Cook County courts. Domestic relations attorneys are unfamiliar with how other divisions operate and how a lien even works. Personally, I refer clients out to a collections attorney to enforce past due child support judgments if we believe there are assets available.
All judgments for past due child support accrue an interest rate of 9%.
Most child support payments get paid through the Illinois State disbursement unit to simply ensure ease of accounting for both parents. The Illinois State disbursement unit records all payments made and received by both parents. An accounting of those payments can be requested through the courts for verification of child support owed. That accounting will also include the interest owed on past due support.
If a final order (usually a Judgment For Dissolution of Marriage) has not been entered yet, the retroactive child support amount can be modified at any time going back as far as the court deems reasonable but not further than the date of filing the request for such relief.
A “trial court [can] order[] a retroactive increase in child support payments [to the date of filing]” In re Marriage of Boland, 721 NE 2d 815 – Ill: Appellate Court, 4th Dist. 1999
What If I Get Behind On My Past Due Child Support?
If you’ve been ordered to pay against the child support that you already didn’t pay the first time the child support was owed AND you’re having a hard time paying the delinquency…a lot of bad things can happen.
The other parent, either independently or through the help of the state’s attorney, can file a petition for rule to show cause that you be held in indirect civil contempt.
This petition for rule to show cause requires you to explain why you were not able to pay what you were ordered to pay.
If the judge finds your explanation lacking (and it’s always lacking unless you were paying at least something), the judge will give you a new court date and “purge” amount. That “purge” is a sum of money that has to be paid before the next court date in order to “purge” your contempt. If you are not able to purge your contempt, you will be found in contempt of court and you will likely be put in Cook County jail until someone pays that purge for you.
When the alleged inability to comply with a child support order is due to financial circumstances, a defense to contempt exists “where the failure of a person to obey an order to pay is due to poverty, insolvency, or other misfortune, unless that inability to pay is the result of a wrongful or illegal act.” In re Marriage of Betts, 155 Ill. App. 3d 85, 100 (1987)
“To prove this defense [to a contempt charge for failure to pay child support], a defendant must show that he neither has money now with which he can pay, nor has disposed wrongfully of money or assets with which he might have paid.” In re Marriage of Logston, 469 NE 2d 167 – Ill: Supreme Court 1984
“[F]inancial inability to comply with an order must be shown by definite and explicit evidence.” In re Marriage of Chenoweth, 134 Ill. App. 3d 1015, 1018 (Ill. App. Ct. 1985)
The moral of the story here is: always pay something against back child support. Never completely stop paying child support. Someone who paid something will be treated very differently from somoeone who paid nothing.
Back Child Support If Income Changed
If the parent paying child support’s income changed, the current order remains in place until a motion to modify child support is filed.
“[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)
“[M]odifications of support are only applicable to payments made after the filing of the modification petition.” In re Marriage of Boyden, 164 Ill. App. 3d 385, 388 (Ill. App. Ct. 1987)
“It is a general principle that past-due installments of child support are the vested right of the designated recipient and cannot be terminated by the defendant, and neither can they be modified as to amount or time of payment.” In re Marriage of McDavid, 97 Ill. App. 3d 1044, 1050, 425 N.E.2d 442, 447 (1981)(citations omitted)
“[P]ast due installments are a vested right and the court has no authority to modify them.” In re Marriage of Hardy, 191 Ill. App. 3d 685, 690, 548 N.E.2d 139, 142 (1989)
However, if the parent paying child support has a duty to report their income, the child support may be found retroactive to what they should have paid if they had properly shared their income records which would have allowed a modification.
A “circuit court is not statutorily barred from imposing a retroactive child[-]support obligation upon a respondent in an ongoing child[-]support proceeding who, contrary to the court’s directive, has failed to inform the court of his having resumed employment.” People ex Rel. Greene v. Young, 367 Ill. App. 3d 211, 214 (Ill. App. Ct. 2006)(citations omitted)
How Far Back Can You Go For Past Due Child Support In Illinois
A child support order is a money judgment. All money judgments eventually expire and become unenforceable. But, it takes a really long time (20 years)
“A petition to revive a judgment…may be filed no later than 20 years next after the date of entry of such judgment.” 735 ILCS 5/13-218
Furthermore, the 20 year clock starts ticking after each payment is owed, not when the original child support order is entered. “Where a money obligation is payable in installments, a separate cause of action accrues on, and the limitations period begins to run against, each installment as it becomes due.” In re Marriage of Smith, 806 NE 2d 727 – Ill: Appellate Court, 2nd Dist. 2004
So, if a payment was owed within the last 20 years, that child support is still collectible.
Even if 20 years have passed another statute says that child support is collectible forever. “Child support judgments, including those arising by operation of law, may be enforced at any time.” 735 ILCS 5/12-108
How To Really Handle Back Child Support Owed In Illinois
If you are owed back child support in Illinois or if you owe back child support in Illinois, there is a solution that satisfies all parties: make a deal with each other.
The obligor parent wants the arrearage to go away. The primary residential parent wants as much money as they can get as soon as they can get it and they know the obligor parent often falls behind.
So, the obligor parent should offer a sum of money to the residential parent that would satisfy all of the back child support.
For example, if father owed mother $ 5,000 in back child support but had $ 2,000 to pay her today if mother was willing to waive all of the back child support, then mother should accept that offer.
Otherwise, father will just pay 20% of his current support and take 5 years minimum to pay the full arrearage…where the father is just likely to fall behind again.
Any deal between the parents regarding child support, whether current or past due, must be put in writing and entered in the underlying divorce or parentage case or the deal will not be enforceable. Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988
“In an appropriate case, however, courts will give effect to either an agreement between the parties or to the doctrine of equitable estoppel to reduce the amount of child support arrearages.” In re Marriage of McDavid, 97 Ill. App. 3d 1044, 1050, 425 N.E.2d 442, 447 (1981)
The other parent should know that they have no obligation to accept any offer of reduced child support arrearages. The amount owed is, effectively, written in stone and cannot be modified unless both parents agree to a reduction in the child support arrearage. That being said, a bird in the hand is worth two in the bush. Someone who did not pay child support in the past is unlikely to pay in the future….so maybe take the money they have today.
If you’d like to learn more about how retroactive or back child support works in Illinois, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.
