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Posted on April 3, 2022

What If The Custodial Parent Makes More Money Than The Non-Custodial Parent In Illinois?

Conceptually, child support seems straightforward. The parent who spends less time with the child covers less of the child’s expenses. Therefore, that non-custodial parent should pay child support to the other parent who must be paying the bulk of the expenses.

A competing theory of child support is that a child costs a certain amount to raise and the two parents should contribute financially to raising that child respective to their incomes.

Usually, these two theories perfectly enmesh if the parents make the same amount of money or if the custodial parent makes less than the non-custodial parent.

But, what happens if the custodial parent, who bears most of the child’s day-to-day expenses also makes more money? Does a custodial parent still get child support if they also can more easily bear the expenses of the child?

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)”

Normally, child support is calculated based on a guidelines income shares method which compares the two parents’ incomes and then awards the custodial parent an amount of child support based on whether they have the child more than 183 days of the year or more than 219 days of the year.

“The court shall determine child support in each case by applying the child support guidelines” 750 ILCS 5/505(a)(2)

An Illinois divorce or parentage court should apply the guidelines child support which is always awarded to the custodial parent.

An Illinois divorce or parentage court may deviate from the child guidelines if they find good reason to do so.

“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, after considering the best interests of the child and evidence which shows relevant factors” 750 ILCS 5/505(a)(2)

“[T]he child support guidelines shall be used as a rebuttable presumption for the establishment or modification of the amount of child support.” 750 ILCS 5/505(a)(3.5)

“The court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate.” 750 ILCS 5/505(a)(3.5)

When deviating from guidelines child support, Illinois divorce and parentage courts must focus on “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) (West 2012)

Specifically, Illinois courts are empowered when deviating from the child support guidelines, if the court finds good reason, to require the custodial parent to pay the non-custodial parent child support.

“Section 505(a)[,governing child support in Illinois,] was intended to protect the rights of children to be supported by their parents in an amount commensurate with the parents’ income…That custodial parents may be required to pay child support to noncustodial parents where circumstances warrant it has long been recognized by the courts…a trial court may order the custodial parent to pay child support to the noncustodial parent where circumstances and the best interest of the child warrant it.” In re Marriage of Turk, 12 NE 3d 40 – Ill: Supreme Court 2014

One can imagine a non-custodial parent receiving support if they had the child for significant periods of time but could barely afford to provide for the child. A child should have a bed and a place to study at both his parents houses. If one parent can afford to furnish both homes while the other parent cannot even furnish their own home, wouldn’t it be in the child’s best interest to have the wealthy parent pay for the child’s expenses at the poorer parent’s residence…regardless of who has primary custody?

“A child is not expected to have to live at a minimal level of comfort while the noncustodial parent is living a life of luxury.” In re Marriage of Bussey, 108 Ill. 2d 286, 297, 483 N.E.2d 1229, 1234 (1985) .

The difference in incomes would have to be extreme for an Illinois divorce or parentage court to award child support to a non-custodial parent. Additionally, the non-custodial parent’s parenting time would need to be extensive to warrant such an exceptional child support order.

As you can see, child support in Illinois is not merely “calculating a formula.” If obtaining the most just amount of child support is key to your divorce or parentage case, please contact my Chicago, Illinois family law firm to speak with an experienced Chicago 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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