When two parties to an Illinois divorce have an ongoing obligation, maintenance or child support, between them, that obligation is usually based on the parties’ incomes at the time the order was entered.
As time passes both parties’ incomes will surely change. After a divorce, the parties no longer share their financial lives. So, each party will, likely, not have access to the other party’s income records; paystubs, tax returns, W-2s. How can either party know what the other party’s income is?
Why You Need To Know The Other Party’s Income After An Illinois Divorce?
In Illinois, Maintenance (formerly known as alimony) and child support are based on both parties incomes if ordered under “guidelines.”
Guidelines child support is based on an “income shares” method which compares both parents’ incomes and the time the child spends with each parent.
Guidelines maintenance is “calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties” 750 ILCS 5/504(b-1)(1)(A)
Once those guidelines amounts are established, they can be modified at a later date.
“An order for child support may be modified as follows:(1) upon a showing of a substantial change in circumstances; and(2) without the necessity of showing a substantial change in circumstances, as follows:(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation” 750 ILCS 5/510(a)
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
Substantial change in circumstances can be determined via “the increase or decrease in each party’s income since the prior judgment or order from which a review, modification, or termination is being sought” 750 ILCS 5/510(a-5)(7)
But, if you don’t know your ex-spouse’s income, how will you modify the support?
Sharing Income Records By Agreement In An Illinois Divorce
When there is an ongoing support obligation, each party to an Illinois divorce should ask that language be written into the Marital Settlement Agreement requiring both parties to tender proof of their incomes on a date certain each year.
Typically, the supporting documents that prove income are only required by language such as “Parties agree to exchange all W2s, 1099s and K-1s by February 15 of each year.” Tax returns are not often required because tax returns will include the income of new spouses…which is irrelevant for the purposes of support.
If a party to a divorce does not tender their documents as required by their agreement, the other party may demand enforcement of the terms of the agreement.
“Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/502(e)
Guessing The Other Party’s Income In An Illinois Divorce
If the Marital Settlement Agreement does not require the exchange of income records and a party to a divorce believes that the other party’s income has changed…but has not definitive proof. That party can simply allege a change in income in their motion to modify support.
That allegation will be based on “information and belief” without further elaboration.
This mere allegation must be based on something or it could be possibly rejected by the court as an insufficient basis for a motion to modify.
“An allegation based “upon information and belief” puts in issue only the pleader’s belief and not the ultimate facts of the case.” Douglass v. Wones, 120 Ill. App. 3d 36, 43 (Ill. App. Ct. 1983)
The “belief” must be based on something to proceed. It wouldn’t take much for that belief to be rational; inflation, a new car, rumor of a promotion.
Discovering Your Ex-Spouse’s Income After An Illinois Divorce
Local court rules require the exchange of financial affidavits upon the filing of any motion to modify. So, the mere filing of a motion to modify will trigger a mandatory exchange of financial documents.
“In all post-judgment proceedings in which a party is seeking to establish, modify or enforce an order of maintenance, child support, support for educational expenses pursuant to Section 513 of the Illinois Marriage and Dissolution of Marriage Act, support for a non-minor child with a disability pursuant to Section 513.5 of the Illinois Marriage and Dissolution of Marriage Act, or attorney’s fees or costs, the parties shall exchange a completed “Financial Affidavit” unless either party files a written objection with the court and shows good cause why such exchange should not be required.” Cook County Rule 13.3.1(b)
“The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501(a)(1)
If those documents are not sufficient to establish an ex-spouse’s income, the party requesting the modification can also issue discovery after the motion to modify is filed and served.
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Ill. Sup. Ct. R. 201(b)(1)
This is likely to be a request for production from the dubious earner themselves or a subpoena to a third party (most likely their employer)
Upon ascertaining your ex-spouse’s income, you are then ready to proceed to a hearing on support which can be summary in nature or via evidentiary hearing based on how contested the facts are.
You can even ask for retroactive support if your ex-spouse was supposed to have shared their income with you.
A “circuit court is not statutorily barred from imposing a retroactive child[-]support obligation upon a respondent in an ongoing child[-]support proceeding who, contrary to the court’s directive, has failed to inform the court of his having resumed employment.” People ex Rel. Greene v. Young, 367 Ill. App. 3d 211, 214 (Ill. App. Ct. 2006)(citations omitted)
If you’re considering modifying support…you will need to know your ex-spouse’s income. Contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
