Posted on August 9, 2022

Overpayment Of Child Support In Illinois

When child support order is entered in Illinois, that order is either written on a self-composed order by child support receiver (or their attorney) or that child support order is the county’s Uniform Order For Support.

Either order is supposed to include an end date for child support.

“An order for support shall include a date on which the current support obligation terminates. The termination date shall be no earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the child’s high school graduation will occur or the date on which the child will attain the age of 19.” 750 ILCS 5/505(g)

If the self-composed order has an end date for child support or if the Uniform Order For Support has the termination box checked with a date of final child support, no child support is owed after that date. Few divorced parents apply proper attention to that date as the termination of child support date is far in the future.

In the meantime, the child support receiving parent will garnish or withhold child support from the child support paying parent’s check.

“[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige” 750 ILCS 28/20(a)

“The income withholding notice shall:

direct any payor to withhold the dollar amount required for current support under the order for support;” 750 ILCS 28/20(c)(2)

Child support in Illinois stops once the child has reached the age of 18 and graduated from high school or has reached the age of 19.

“[T]he term “child” shall include any child under age 18 and any child age 19 or younger who is still attending high school.” 750 ILCS 5/505(a)

Income Withholding Orders do NOT include a termination date reflecting the child’s 18th birthday or graduation date.

If the child support is being withdrawn by the State Disbursement Unit (it almost always is), the child support will be terminated by the State Disbursement Unit according to the termination date in the underlying order.

Otherwise, a parent must go to court to terminate the garnishment. “At any time, an obligor, obligee, public office or Clerk of the Circuit Court may petition the court to…terminate the income…withholding notice because of a…termination of the underlying order for support” 750 ILCS 28/40(b)

Often, the parent of an adult child finds that their child support order did not include a termination date and they must modify the underlying support order as well.

Does the child support paying parent get a credit for the overpayment of child support if their check continued to get garnished after the child’s high school graduation or birthday?

It depends.

Somethings are not fair…but they happen anyways. There’s a court for fairness called a “court of equity.” Divorce court or parentage court are not courts of equity.

“Courts of equity have no inherent power in cases of divorce. The jurisdiction of such courts to hear and determine divorce matters is conferred only by statute. While such courts may exercise their powers within the limits of the jurisdiction conferred by the statute, the jurisdiction depends upon the grant of the statute and not upon general equity powers.” Strukoff v. Strukoff, 389 NE 2d 1170 – Ill: Supreme Court 1979(Citation omitted)

A parent cannot just stomp and complain that it is not fair that they paid child support for an adult. The parent of an adult receiving child support must point to a rule.

There is nothing mentioned in the Illinois Marriage And Dissolution Of Marriage Act regarding overpayment of child support so the rule must be found in the case law.

Case law says voluntary child support payments cannot be an overpayment of child support requiring a refund to the overpaying parent.

“As a general rule, no credit is given for voluntary overpayments of child support, even if made under the belief that they are legally required.” In re Marriage of Miller, 595 NE 2d 1349 – Ill: Appellate Court, 3rd Dist. 1992

“Courts generally do not allow a credit to the obligor spouse for voluntary expenditures made on behalf of the child in a manner other than that specified by a decree.” Harner v. Harner, 105 Ill.App.3d 430, 61 Ill. Dec. 312, 434 N.E.2d 465, 468 (1982) (citations omitted)

If credits based on voluntary behavior were allowed, parents would just stop paying and say “I think I’m owed a credit.”

“The rationale for this rule is that such a credit would be tantamount to allowing one party unilaterally to modify the divorce decree and could result in future deprivation to the children and the payee.” In re Marriage of Smak, 641 NE 2d 981 – Ill: Appellate Court, 2nd Dist. 1994

Most overpayments of child support happen because an income withholding order has not been terminated after the child turned 18, 19 or graduated from high school. These payments are due a reimbursement because they are involuntary.

“[T]hat general rule would not apply in this situation, where the overpayment was not paid voluntarily and was paid through a withholding of the payor spouse’s wages.” IN RE MARRIAGE OF FLYNN, Ill: Appellate Court, 3rd Dist. 2021

“[The payor] paid more through the deduction order than he was obligated to pay…the underlying principle…is that one person should not profit at the expense of another because of a wrong or a mistake…fundamental fairness demands that…credit be given.” In re Marriage of Tollison, 208 Ill.App.3d 17, 153 Ill.Dec. 2, 566 N.E.2d 852, 854 (1991)

An involuntary overpayment is the result of sloppy order writing on the part of the parties when the original child support order (or its subsequent modifications) were entered. Illinois courts do not want to punish people for the bad work of attorneys.

This “exception [is] applicable when [b]oth parties’ attorneys in the original modification action had a hand in producing the erroneous calculation of child support, and granting a credit would “not work a hardship on the children”; In re Marriage of Olsen, 229 Ill.App.3d 107

The parent who overpaid child support can then file a motion to get a credit, refund or a money judgment against the parent who was overpaid child support as part of their motion to terminate the child support (that should have terminated a long time ago).

“In any event, we see no reason why a request for reimbursement cannot occur within an enforcement proceeding as there are no specific provisions in the Act that address reimbursement for overpayment of maintenance obligations.” In re Marriage of Figliulo, 46 NE 3d 1147 – Ill: Appellate Court, 1st Dist., 1st Div. 2015

An Illinois court is not going to cut a child off completely from child support because of past overpayments.

“While the court may, on remand, reduce [a parent’s] child support obligation based on his overpayment of child support, the court must ensure that the reduction does not work a deprivation on the minor child.” In re Marriage of DiFatta, 714 NE 2d 1092 – Ill: Appellate Court, 2nd Dist. 1999

In most overpayment cases, the minor child is no longer a minor…there’s no “deprivation of the minor child.” There is no further child support obligation to get a credit or reimbursement from.

So, how does the parent who overpaid child support get their money back?

The parent who was accepting the child support overpayment was not really in willful violation of the order, to the child support receiving parent cannot be held in contempt.

The best a parent who overpaid child support can do is get a money judgment against the parent who received the overpayment in the amount of the overpayment. The overpaying parent will subsequently try to collect on that money judgment.

This means determining what assets the overpaid parent has.

“A judgment creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute citations to discover assets for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor” 735 ILCS 5/2-1402(a)

Upon identifying the overpaid parent’s assets, the overpaying parent can then start seizing those assets.

“[T]he court may, by appropriate order or judgment:….[c]ompel the judgment debtor to deliver up, to be applied in satisfaction of the judgment, in whole or in part, money, choses in action, property or effects in his or her possession or control, so discovered, capable of delivery and to which his or her title or right of possession is not substantially disputed.” 735 ILCS 5/2-1402(c)(1)

Most divorce and parentage courts in Illinois will not entertain this search and seizure of assets in their courts. Divorce judges will likely direct the party who obtained the money judgment to enforce it in the appropriate collections court like any other creditor.

Chasing after overpaid child support is probably a fool’s errand unless the amount of overpaid child support is monumental. It would be better to ask for a credit towards the child’s college contribution.

As a divorce lawyer, I’ve learned that people can forgive a lot…except money that’s owed to them. Overpayment of child support which is money for the best purpose, your child, will likely not be forgiven by the overpaying parent. If there is more money owed for other matters, that overpayment should not be forgiven. Contact my Chicago, Illinois family law firm to learn more about child support overpayment from an experienced Illinois divorce attorney.

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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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