In Illinois, 39% of all children are born to unmarried parents. Unmarried parents usually are in a relationship and can rely on each other to raise and support their children…until they can’t. When an unmarried parent needs financial support from the other parent in Illinois, that unmarried parent must turn to the legal system. So, how does child support for unmarried parents work in Illinois?
Filing For Child Support In Illinois
“A civil proceeding may be maintained to adjudicate the parentage of a child.” 750 ILCS 46/601
You can bring a child support petition in the county in Illinois that either parent lives in.
“Venue for a proceeding to adjudicate parentage is any county of this State in which a party resides” 750 ILCS 46/604
But, if there’s a dispute about where to hear the child support case, the county where the child spends most of its time will probably be the right venue.
The people that can bring a child support petition (or any petition related to the child of unmarried parents) are
‘(a) the child;
(b) the mother of the child;
(c) a pregnant woman;
(d) a man presumed or alleging himself to be the parent of the child;
(e) a woman presumed or alleging herself to be the parent of the child;
(f) the support-enforcement agency or other governmental agency authorized by other law;” 750 ILCS 46/602
A pregnant woman can ask for child support in advance of having the baby in Illinois.
A presumed father can get the ball rolling to establish child support (and hopefully custody) in advance of the child’s birth.
You don’t need a bunch of DNA tests. The court will take the mother and father’s word that the father is the father of this child.
You don’t even need to formally establish who the father of the child is before getting a temporary child support order.
“[P]ending the outcome of a judicial determination of parentage, the court shall issue an order for child support upon motion by a party and a showing of clear and convincing evidence of parentage” 750 ILCS 46/801
What constitutes “clear and convincing evidence” is up to the Illinois family court judge. Testimony from the birth mother should be sufficient if the family law lawyer asks the judge to enter the order “without prejudice” just in case the presumed paternity of the child is eventually denied.
Declaring Parentage In An Illinois Child Support Court
You can petition the court to declare a person a child’s parent at any time. No matter how old the child is.
“A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated parent may be commenced at any time, even after…the child becomes an adult” 750 ILCS 46/607
To get a permanent child support order in Illinois, you have to serve the other parent with your petition for parentage and child support.
“An individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual” 750 ILCS 46/603(b)
If the presumed parent does not reply to the child support petition, the court will just declare him the father by default.
“The court may issue an order adjudicating the parentage of a person who is in default after service of process.” 750 ILCS 46/620
Most of the time, the presumed parent will happily admit to being a parent.
“A respondent in a proceeding to adjudicate parentage may admit to the parentage of a child by filing a pleading to that effect or by admitting parentage under penalty of perjury when making an appearance or during a hearing.
If the court finds that the admission of parentage satisfies the requirements of this Section and finds that there is no reason to question the admission, the court shall enter an order adjudicating the child to be the child of the person admitting parentage.” 750 ILCS 46/616
If the presumed parent does admit to being a parent, the Illinois family law judge will have a quick meeting the parent and the alleged parent to try to resolve the matter as soon as possible, for everyone’s sake.
“As soon as practicable after an action to declare the existence or non-existence of the parent-child relationship has been brought, and the parties are at issue, the court may conduct a pre-trial conference.” 750 ILCS 46/618
Usually, there’s an emotional reason the presumed parent does not want to be declared the father. If that is the case, a pre-trial conference can diffuse the emotions and avoid a messy hearing regarding parentage that involves testimony about who had sex with who, when did they have sex and/or a $ 500 DNA test.
An unmarried father will be found to be the parent of the child by an Illinois family law court if
1. He signed the voluntary acknowledgment of paternity form at the hospital. 750 ILCS 46/201(a)(2)
OR
2. A DNA test confirms that he is the biological father of the child. 750 ILCS 46/404
An unmarried father will be able to deny paternity through a DNA test. In Cook County, Illinois they make you use one DNA test supplier that charges $ 500.
How Do You Determine The Amount Of Child Support For Unmarried Parents?
The Illinois statute regarding unmarried parents instructs us to use the exact same child support calculations that married parents use.
“In determining the amount of the child support award, the court shall use the guidelines and standards set forth in Sections 505 and 505.2 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 46/801
Child support is based on each parent’s income and the overnight parenting time that each parent enjoys with the child.
The actual technical calculations that determine child support in Illinois are exceedingly complicated. I doubt anyone actually does the calculations themselves. Even seasoned Illinois divorce lawyers such as myself just use an online calculator.
The only thing that can really impact child support amounts is the extent to which you are the non-primary parent.
“If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation.” 750 ILCS 5/505(a)(3.8)
More than 146 nights is more than 40% of the overnights with the child. That’s at least 3 nights out of a 7 day week. This multiplication of 1.5 reduces the child support owed by about half. Again, you have to use the online calculator to check.
Once the court order is entered, the parties have the option of paying the child support directly to each other or taking the child support directly from the check of the child support payor.
“[S]upport payments be made to the State Disbursement Unit if…the support payments are made through income withholding” 750 ILCS 46/815
The Illinois State Disbursement Unit is a state agency that collects child support from the child support payors and then sends that support directly to the child support receivers. They keep an accounting of every payment made and received over the life of a child in case there is a dispute later. The State Disbursement Unit does this all for $ 36 a year.
Past Due Child Support For Unmarried Parents In Illinois
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
Unmarried parents can ask that child support be ordered back to the date of the child’s birth.
“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, Illinois family law judges will look to when the unmarried parents stopped living together as the time that the obligor parent needs to have his support begin. If the father lived with the mother, it’s presumed he was helping financially with the child at the time.
A father who never even knew he had a child will not be held responsible for that child’s support for the years he didn’t even know the child was alive.
“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, In Illinois, no father can expect a petition for 17 ½ years of child support for a newfound child.
Additional Child Care Expenses For Unmarried Parents In Illinois
Child support is not a lot of money. Put your income and your child’s parent’s income in the child support calculator and you will see that it costs a lot more to raise a child than that child support amount.
The real expense of a young child is child care.
“[I]n addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable child care expenses of the child. The child care expenses shall be made payable directly to a party or directly to the child care provider at the time of child care services.” 750 ILCS 5/505(a)(3.7)(A)
“Child care expenses shall be prorated in proportion to each parent’s percentage share of combined net income, and may be added to the basic child support obligation if not paid directly by each parent to the provider of child care services. The obligor’s and obligee’s portion of actual child care expenses shall appear in the support order.” 750 ILCS 5/505(a)(3.7)(A)
So, both unmarried parents will pay a share of their child care, babysitter and/or daycare based on their percentage of income relative to the other parent. For example, if one parent made $ 60,000 a year and the other parent made $ 40,000 a year, they would split the child care expenses 60/40.
Beyond child care are the expenses of a child for doing after school and summer activities.
“The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable school and extracurricular activity expenses incurred which are intended to enhance the educational, athletic, social, or cultural development of the child.” 750 ILCS 5/505(a)(3.6)
All unmarried parents must enter into an allocation of parenting time and parenting responsibilities which must outline which parent is responsible for selecting the child’s extracurricular activities. Usually, the decision is shared between both parents and either parent can refuse to enroll the child and, thus, pay for the specific extracurricular activity.
Which Unmarried Parent Gets To Declare The Child On Their Taxes ?
Whoever has the child for the majority of the year will be able to declare the child on their taxes. Unless there’s an agreement or court order stating otherwise.
“Unless a court has determined otherwise or the parties otherwise agree, the party with the majority of parenting time shall be deemed entitled to claim the dependency exemption for the parties’ minor child.” 750 ILCS 5/505(a)(3)(C)(I)
There is a long-standing consensus in Cook County’s domestic relations division that if you’re paying child support, you get to declare the child every other year on your taxes. If you have two children, you each get to declare one child.
Modifying Child Support For Unmarried Parents In Illinois
If either parent experiences an interruption, decrease or increase in their income, either parent can file a motion to modify child support to reflect that change.
Parents usually keep each other informed as to their incomes change (or lack thereof) by exchanging tax returns and W2s at the end of each tax year.
What If Child Support Is NOT Paid In Illinois?
If child support is ordered and is not paid in Illinois, the child support payor is going to have a problem.
The child support recipient can file a motion to enforce the payment of child support and get an arrearage judgment which accrues interest at 4.5% (that’s like a credit card rate).
If the child support payor continues to fail to pay their current and back-due child support then the Illinois family law court has the authority to put the delinquent child support payor in jail.
If you’d like to learn more about how child support works in Illinois as an unmarried parent, contact my Chicago, Illinois family law office to arrange for a free consultation.
