Child support is irksome to some people. Some parents just don’t want to pay child support…and usually have an articulable reason for objecting to the payment of child support. Setting child support at zero in an Illinois divorce can be done…but you have to be very careful to prepare the child support order so that there is truly no child support obligation now or in the future.
“[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)
While an Illinois divorce court may order child support, an Illinois divorce court shall make a determination of what child support should be according to the child support guidelines.
“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)
The child support guidelines are an abstract formula which compares the income of both parties to the nights the children spend with each parent. Someone will always owe the other party something under the Illinois child support guidelines.
An Illinois divorce court is only going to set the child support to zero if the guidelines amount would be “inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.4)
The reasons for asking the court to deviate from the guidelines and set the child support to zero are infinite: the parents share equal time with the child, one parent pays for day care or private school, one parent has a disability, etc.
The reason for zero child support are easy. The hard part is doing the proper math in a zero child support order to show what child support should have been under the guidelines.
“Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.5)(emphasis mine)
The math still must be done as to what child support should be under the guidelines.
“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)
By explicitly calculating guidelines support both parents will understand what they’re giving up if they request or agree to a zero dollar child support amount.
This requires a final finding that no child support is awarded based on the facts. Such an order should say that “based on the totality of circumstances a deviation from guidelines is appropriate such that no child support shall be paid from one party to the other.” (Hat tip to Julie Johnson for this language)
This language justifying a zero child support obligation after an Illinois divorce or parentage action is the alternative to suggesting that the parties merely “reserve” child support.
Reserving Child Support In Illinois
The Illinois Parentage Act and the Illinois Marriage and Dissolution of Marriage Act is very much biased towards ordering child support.
“Illinois recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents under this Act.” 750 ILCS 45/1.1
“This Act shall be liberally construed and applied to promote its underlying purposes, which are to: make reasonable provision for support during and after an underlying dissolution of marriage, legal separation, parentage, or parental responsibility allocation action” 750 ILCS 5/101(a)(8)
This liberal application of the right of child support allows an Illinois court to “reserve” child support in lieu of ordering child support immediately.
“The judgment shall contain or explicitly reserve provisions concerning any duty and amount of child support” 750 ILCS 46/802(a)
Reserving child support is not looked upon fondly. There needs to be a good reason to have reserved child support (not just an agreement of the parties that you snuck in under the judge’s nose). “[A]ppropriate circumstances should exist before a trial judge enters a judgment of dissolution and reserves questions of child…support” In re Marriage of Cohn, 443 NE 2d 541 – Ill: Supreme Court 1982
Reserved matters can be brought up later. That means the child support will be owed from the moment the petition for child support was filed…or earlier if the parties were not married. Additionally, interest will be due on that reserved child support.
Signing Away Rights To Avoid Child Support In Illinois
Some parents think that by signing some kind of paper that absolves a parent of their rights also absolves that parent of any responsibility to pay support for the child.
You cannot sign away the responsibilities of a child unless another parent will step in your place and provide for the child.
“After an adoption judgment is entered, the biological parents of the child are relieved of all parental responsibilities for the child…adoption constitutes a complete and permanent severance of all legal and natural rights between such parents and children” In re MM, 619 NE 2d 702 – Ill: Supreme Court 1993
You cannot even make a deal with the other parent where no contact with a child means no responsibility for the child.
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 was contrary to public policy.” Blisset v. Blisset, 526 NE 2d 125 – Ill: Supreme Court 1988
Children deserve a parent financially…even if the parent does not want to be a parent.
Prenuptial Agreements And Zero Child Support
The forward thinking (of sorts) parent may contemplate waiving child support via a contract with the other parent in contemplation of marriage. Absolving oneself of a child support obligation via prenuptial agreement is not allowed in Illinois.
“The right of a child to support may not be adversely affected by a premarital agreement.” 750 ILCS 10/4(b)
If the parents are not married, they cannot enter into any kind of contract about money…including one for child support.
“It is well settled that the policy of the Marriage and Dissolution Act gives the state a strong continuing interest in the institution of marriage and the ability to prevent marriage from becoming in effect a private contract terminable at will, by disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants.” Blumenthal v. Brewer, 2016 IL 118781
Waiving Child Support By Agreement In Illinois
Of course, every agreed child support order is essentially a court approved contract. But, the steps of determining what guidelines support should have been must still be articulated in any contract/order before agreeing to a zero child support order.
Furthermore, any court- approved contract must conform with the law.
“[T]hough a trial court is allowed to deviate from the amount of support that the guidelines generate based on a party’s net income, the court is not permitted to deviate from the measure of net income to which the guidelines apply in the first instance. . .Section 505(a)(1) sets forth “guidelines,” i.e., a table for determining, based on the number of children to be supported, the percentage of net income to be paid as support. 750 ILCS 5/505(a)(1) (West 2014). Section 505(a)(2) permitted deviation from the “guidelines” if warranted by the best interest of the child. The text of section 505 authorized no other manner of deviation from its dictates, including (as relevant here) section 505(a)(3)’s definition of “net income.” In re Marriage of Solecki, 2020 IL App (2d) 190381, ¶ 62, citing In re Marriage of McGrath, 2012 IL 112792.
Court-approval means that a child support agreement must be in compliance with the law. “It is well settled that it is the court’s responsibility, not the parties’ responsibility, to determine the adequacy and amount of child support.” In re Marriage of Fisher, 2018 IL App (2d) 170384, ¶ 25
If you’re trying to avoid paying child support entirely, you are going to need to be creative while still conforming with the law. This means you will need a creative attorney. Contact my Chicago, Illinois family law firm to learn more about what you should pay…and you what you may not have to.