In an Illinois divorce or custody fight, parents often fight for more time with their children. The parents may want more time with their children but the parents may also be hoping that more time with the children means more or less child support to be paid or to be received. How does parenting time affect child support?
The purpose of the Illinois child support statute is to “to allocate the amount of child support to be paid by each parent based upon a parent’s net income and the child’s physical care arrangements.” 750 ILCS 5/505(a)(1)(F)(emphasis mine)
Under Illinois law, the “child’s physical care arrangements” do not have a great impact on the child support…until they do.
How Is Parenting Time Determined In Illinois?
Each parent’s schedule with their shared children is determined by an agreement by the parents or by a ruling from an Illinois family court.
“Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time.” 750 ILCS 5/602.7
If the parents cannot agree on a parenting schedule, the courts allocate parenting time according to what the court perceives as the child’s best interests.
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)
Parenting time, once determined, does not a have a strong effect on child support unless that parenting time is significant.
How Is Child Support Determined In An Illinois Divorce Or Custody Fight?
Child support is ordered by a domestic relations judge in Illinois.
“[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a)
The judge inputs both of the parties’ incomes into a complicated pseudo-formula in order to determine child support.
“The court shall compute the basic child support obligation by taking the following steps:
(A) determine each parent’s monthly net income;
(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;
(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and
(D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(a)(1.5)
The calculation provides “each parent’s percentage share of the basic child support obligation.”
In theory, each parent is to contribute the calculated amount towards raising of the child…but only the parent who is not the primary caretaker has to actually pay.
“Although a monetary obligation is computed for each parent as child support, the receiving parent’s share is not payable to the other parent and is presumed to be spent directly on the child.” 750 ILCS 5/505(a)(1.5)
It doesn’t matter how much time the parent who is not the primary caretaker of the child spends with the child…until they spend 146 nights with the child (40% of the year).
After the non-primary parent has the child for 40% of the overnights, a new calculation is made.
“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)
Initially, this seems like child support goes up…but then child support is reduced by that child support obligation by the percentage of time the parent spends with the child.
“The child support obligation is then computed for each parent by multiplying that parent’s portion of the shared care support obligation by the percentage of time the child spends with the other parent.” 750 ILCS 5/505(a)(3.8)
With two respective child support amounts calculated, the amounts are then offset where the parent who has the bigger obligation pays the parent with the smaller obligation their child support amount less the other parent’s child support amount.
“The respective child support obligations are then offset, with the parent owing more child support paying the difference between the child support amounts.” 750 ILCS 5/505(a)(3.8)
In conclusion, In Illinois, parenting time does not affect child support until both parents are spending more than 40% of the overnights with the child.
Agreements To Reduce Child Support If A Parent Exercises More Parenting Time
Parents might reject the statutory scheme in favor of an agreement where a parent pays less child support or even pays no child support if the parent exercises more parenting time.
An Illinois divorce court will still have to approve this agreement.
“The court shall determine child support in each case by applying the child support guidelines unless the court makes a finding that application of the guidelines would be inappropriate” 750 ILCS 5/505(a)(2)(emphasis mine)
When allowing an agreement or any non-guidelines child support order the Illinois divorce judge must consider “the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors:
(a) the financial resources and needs of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical, mental, and emotional needs of the child;
(d-5) the educational needs of the child; and
(e) the financial resources and needs of the non-custodial parent.” 750 ILCS 5/505(a)(2)
You will note that “parenting time” is not listed as a factor which allows an Illinois family court to deviate from the child support guidelines.
“Section 505 [of the Illinois Marriage and Dissolution of Marriage Act] does not include a provision addressing joint custody cases when the noncustodial parent receives extended visitation rights with the children” In re Marriage of Demattia, 302 Ill. App. 3d 390, 393-94 (Ill. App. Ct. 1999)
“Child support is an obligation the parents owe for the benefit of the child, and the parents may not by agreement deprive the child of that support.” In re Marriage of Deem, 766 NE 2d 661 – Ill: Appellate Court, 4th Dist. 2002
Additionally, a parent cannot waive their right to see the child in exchange for reducing child support by agreement.
A “parties’ agreement to waive child support in exchange for [a parent] giving up his right of visitation would not be enforced,…such an agreement [is] contrary to public policy.” Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988
Reducing Child Support Because A Parent Is Spending More Time With A Child
While it may seem difficult to reduce child support based on an increased/robust visitation schedule, like my mother always said “you don’t get if you don’t ask.”
A “trial court may certainly consider [a parent’s] extended visitation rights, but the law does not mandate a downward deviation nor was the court obligated to make an express finding regarding this issue.” In re Marriage of Demattia, 302 Ill. App. 3d 390, 394 (Ill. App. Ct. 1999)
A reduction in support due to an increase in parenting time is definitely not favored. “There should not be an automatic deduction in child support because a non-custodial parent has the opportunity to spend substantial time with the child and fulfill a parental responsibility.” In re Marriage of Sawicki, 806 NE 2d 701 – Ill: Appellate Court, 3rd Dist. 2004
Perhaps the only way to show that child support should be reduced due to additional parenting time is by showing that the additional parenting time has increased the expense for the parent with the additional parenting time.
“It is inappropriate to reduce an obligor’s child support obligation simply because the noncustodial parent enjoys substantial time with his children. Although a noncustodial parent will conceivably incur additional costs when caring for children, a reduction in child support is unnecessary unless the costs are shown to be excessive or uncommon. Where the additional costs appear to be normal, no child support reduction is warranted.” In re Marriage of Connelly, 145 NE 3d 724 – Ill: Appellate Court, 3rd Dist. 2020 (citations omitted)
Illinois family law courts need to explain their reason for reducing child support because of additional parenting time.
“Even in cases involving joint custody, when a primary physical custodian has been designated, the trial court has an obligation to award child support or explain its downward deviation from the statutory guidelines.” In re Marriage of Deem, 766 NE 2d 661 – Ill: Appellate Court, 4th Dist. 2002
So, give your Illinois family law judge a reason to allow a non-guidelines reduction in child support: the additional time with the child creates additional costs. If the child is spending time with you, you are feeding, clothing and sheltering the child within that time.
Even if the additional expenses aren’t clear or significant, additional time with a child can be considered as a deviation from guidelines because the additional time reflects “the standard of living the child would have enjoyed had the marriage not been dissolved” 750 ILCS 5/505(a)(2)(c)
The “costs of maintaining a child’s standard of living includes mortgage, utilities, food, car payments, and the children’s clothing.” In re Marriage of Benyon, 127 NE 3d 1151 – Ill: Appellate Court, 3rd Dist. 2019
In conclusion, reducing child support because you are spending more time with a child is not likely to succeed…but what is the worst case scenario? That you will be ordered to pay the guidelines child support that is the standard anyways? It always helps to ask. Either way, the court will be educated as to what an involved and consistent parent you are.
To learn more about parenting time and child support, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
