Retroactive child support in Illinois

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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Back Child Support In Illinois

Retroactive child support in Illinois

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 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.

To calculate back child support in a fresh divorce or parentage case is a more complicated endeavor.

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. 

Illinois courts well before the Illinois Parentage Act of 2015 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 past 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 child support based on that previous income.  But a parent must bring this up in order to change 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 don’t bring it up, the Illinois family law court will just use the current income to calculate your 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 back child support for the last 17 years under Illinois law.

“The father’s prior willingness or refusal to help raise or support the child” 750 ILCS 42/86(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 stay in past support remind the judge that it is essentially a retroactive modification of child support…which is not allowed under Illinois law.

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.

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.

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)

So, back child support (also known as retroactive child support) can only be pursued only when the absconding parent refuses to be served with divorce papers

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.

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% (5% after 2021). 

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.

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 requires you to explain why you weren’t 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. 

The moral of the story here is: always pay something against back child support.  Never completely stop paying child support.

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

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.