When a divorce in Illinois is finalized, the parties are issued final orders which both parties must abide by. But, life goes on and things change eventually no matter what the Marital Settlement Agreement or Allocation of Parental Responsibilities and Parenting Time say. Sooner or later, those documents will need to be modified. But how much change is necessary in order for a modification in an Illinois divorce court? The answer is that a “substantial change in circumstances” is necessary to modify most Illinois divorce orders. So, what is a substantial change in circumstances in Illinois?
First, it must be acknowledged that some things almost never change after a divorce. The division of assets is final. A waiver of maintenance (formerly known as alimony) is final. Most other things in divorce are related to ongoing payments, parenting time and parental responsibilities. All of those matters may be modified after an Illinois divorce.
Modifying Parenting Time In Illinois
In Illinois, every divorce with a child has an order entered titled the “Allocation of Parental Responsibilities And Parenting Time.” This document governs the children’s schedule and which parent will make what decisions on behalf of the children.
A child’s schedule can be changed for any reason whatsoever, so long as that change will be in the best interests of the child. A big event or change is not necessary to modify parenting time.
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child” 750 ILCS 5/610.5(a)
Note that the statute says “changed circumstances” and NOT substantial change of circumstances. In re Marriage of Salbi 2024 IL App (2d) 240322-U
Anything can be a change of circumstances. There is no need to weigh the change by the change’s substantialness.
Upon establish that a change of circumstances has occured, an Illinois court will then consider a modification based on the best interests of the child.
“This provision evinces a desire to maintain continuity in parenting plans, which is a policy this court has long favored.” O’Hare, 2017 IL App (4th) 170091
There are exceptions to the requirement for a change in circumstances to modify parenting time. If you’re just memorializing a schedule that you’ve already adopted, the change is minor or the parties agere
“The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if (i) the modification is in the child’s best interests; and (ii) any of the following are proven as to the modification:
(1) the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent;
(2) the modification constitutes a minor modification in the parenting plan or allocation judgment;
(3) the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved under Section 602.5 or 602.7 had the court been aware of the circumstances at the time of the order or approval; or
(4) the parties agree to the modification.” 750 ILCS 5/610(e)
“This section reflects an underlying policy favoring the finality of child custody judgments and creating a presumption in favor of the present custody so as to promote stability and continuity in the child’s custodial and environmental relationships.” In re Marriage of Fuesting, 228 Ill. App. 3d 339, 344 (Ill. App. Ct. 1992)
Modifying Parental Responsibilities In Illinois
Changing the parent who makes particular decisions for the child (which is effectively custody) is much more difficult in Illinois.
“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)
For a change in decision-making, the parents must wait at least two years from the last order regarding decision-making. The only exception if the child is in some kind of danger. This standard is clearly higher than a “substantial change in circumstances.”
After two years, a substantial change in circumstances is the first question a court must ask itself before modifying an allocation of decision-making for the child.
“[T}he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
Without a substantial change of circumstances (and I’ll define this term later in the article) a court can only modify an Allocation of Parental Responsibilities if the modifications were already effectively in place, agreed to, minor or if the circumstance that warrant the change existed in the first order but the court was unaware of the circumstances at the time.
“The court may modify a parenting plan or allocation judgment without a showing of changed circumstances if (i) the modification is in the child’s best interests; and (ii) any of the following are proven as to the modification:
1) the modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent;
2) the modification constitutes a minor modification in the parenting plan or allocation judgment
3) the modification is necessary to modify an agreed parenting plan or allocation judgment that the court would not have ordered or approved under Section 602.5 or 602.7 had the court been aware of the circumstances at the time of the order or approval; or
4) the parties agree to the modification.” 750 ILCS 5/610.5(e)
For both parenting time and parental decision making a child aging is not sufficient to establish a “substantial change in circumstances.”
There is no precedent in Illinois which “blanketly hold[s] that a change in circumstances occurs merely because the children are older.” In re Marriage of Trapkus, No. 3-19-0631, 15 (Ill. App. Ct. 2022) (Citation and Quotation Omitted)
An Illinois family law court needs to look at everything, not merely one thing, when deciding if a substantial change has occurred to warrant a modification
“When a court determines whether a substantial change in circumstances has occurred, Illinois law requires the court to consider the totality of the circumstances. We will not blanketly hold that a substantial change in circumstances either does or does not occur when a certain number of years have passed since the entry of the parenting-time allocation or when the children have expressed a desire for more equal parenting time.” In re Marriage of Trapkus, No. 3-19-0631, 16 (Ill. App. Ct. 2022)
Modifying Child Support
“ ‘Both parents have the financial responsibility to support a minor child.’ ” Vance v. Joyner, 2019 IL App (4th) 190136, ¶ 54 (quoting In re Marriage of Maczko, 263 Ill. App. 3d 991, 994 (1992))
“A child-support judgment generally can be modified only upon a showing of a substantial change in circumstances…A substantial change in circumstances typically means that the child’s needs, the obligor parent’s ability to pay, or both have changed since the entry of the most recent support order such that a modification of the support amount is warranted…The burden of showing a substantial change in circumstances sufficient to justify a modification of a child support award is on the party seeking the relief.” In re Marriage of Izzo, 2019 IL App (2d) 180623
Child support can be modified in Illinois if the proposed new child support would be 20% larger or smaller than the current child support or if there’s been a substantial change in circumstances.
“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; or(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child’s health care needs.” 750 ILCS 5/510(a)
I can’t imagine a substantial change in circumstances that wouldn’t also modify a child support order by 20% or the parent who would be willing to spend thousands in attorney’s fees to modify support by only 19% or less.
Child support usually gets increased when the parent receiving support discovers that the parent paying support has had an increase in income. “A substantial change in circumstances may be based solely on an increase in the supporting parent’s ability to pay.” In re Marriage of Yabush, No. 1-20-1136, 14 (Ill. App. Ct. 2021)
Increases in income must be examined relative to both parties’ incomes. “[A]n increase in a custodial parent’s income will not be considered a substantial change in circumstances where the increase is small compared to the noncustodial parent’s income.” In re Marriage of Connelly, 2020 IL App (3d) 180193
Again, Illinois courts do not want people running to court with a motion to modify if the respective differences have not changed significantly.
“Although an increase in the supporting parent’s ability to pay may constitute a substantial change in circumstances, courts will not find that there has been a substantial change in circumstances where the increase in the obligor’s income is relatively small.” In re Marriage of Durdov, No. 1-19-1811, 10 (Ill. App. Ct. 2021)
“[A] small increase in the obligor’s income does not constitute a substantial change in circumstances.” In re Marriage of Connelly, Appeal No. 3-18-0193, 6 (Ill. App. Ct. 2019)(citing examples of 8% and 10% increases in income not constituting a substantial change in circumstances.)
A finding of a substantial change in circumstances is necessary for an Illinois court to order a modification. But, “even where there is a substantial change in circumstances, the court has discretion to deny a motion to modify child support depending on the
facts of each case.” In re Marriage of Alpert Knight, 2024 IL App (1st) 230629
Modifying Maintenance (Formerly Known As Alimony) In Illinois
Maintenance in Illinois is usually based on a purely numerical formula: 33% of the net income of the maintenance payor less 25% of the net income of the maintenance payee, not to allow the maintenance payee to receive more than 40% of the combined net incomes.
Maintenance in Illinois is set for a length of time based on the length of the marriage. That period of time may be mere months. The maintenance may be permanent if the marriage was long enough (20+ years).
“Under Illinois law, all maintenance awards are reviewable.” In re Marriage of Kasprzyk, 2019 IL App (4th) 170838
The longer the maintenance lasts, the more likely it will be that a modification of the maintenance amount will be warranted.
“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)
Generally, “[a] substantial change in circumstances means that either the needs of the receiving spouse have changed or the ability of the other spouse to pay has changed.” In Re Marriage of Osseck, 2021 IL App (2d) 200268, ¶ 47
The statute is more specific. The Illinois Marriage and Dissolution of Marriage Act directs us to factors that can specifically guide the court in finding a substantial change in circumstances for the purposes of warranting a modification in maintenance.
“(1) any change in the employment status of either party and whether the change has been made in good faith;(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;(3) any impairment of the present and future earning capacity of either party;(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;(7) 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;(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and(9) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/510(a-5)
Substantial change in circumstances can even be a lack of changed anticipated circumstances. “[T]he lack of a good-faith effort to achieve financial independence may, if proved, constitute the changed circumstance.” In re Marriage of Lenker, 241 Ill. App. 3d 15, 19 (1993)
A substantial change in circumstances does not guarantee a modification of maintenance. “When a court determines that there has been a substantial change in circumstances, it may modify the maintenance award, but it is not required to do so.” In re Marriage of Osseck, 2021 IL App (2d) 200268, ¶ 48
What Exactly Is A Substantial Change In Circumstances In Illinois?
Most of the modifications to final divorce documents that I’ve described above require that an initial showing of a substantial change in circumstances before an Illinois court will even consider modifying an order. How is a petitioner to know if the changes in circumstance have been substantial enough?
“There is no precise formula for a substantial change in circumstances.” In re Marriage of Solecki, 2020 IL App (2d) 190381
But, whatever the substantial change in circumstances is alleged to be, “[t]he party seeking modification bears the burden of proving this change.” In re Marriage of Logston, 469 NE 2d 167 – Ill: Supreme Court 1984
“Only after determining the threshold issue of whether a substantial change in circumstances has occurred can a court consider modifying a child support order” In re Marriage of Armstrong, 346 Ill. App. 3d 818, 823 (2004)
But, a circumstance’s substantial change can probably be pretty minor so long as a modification based on that change would be in the child’s best interests.
“The law is clear that only some change in circumstances of any nature that would justify equitable action by the court in the best interests of the child is required.” (Emphasis in original.) In re Marriage of Singleteary, 293 Ill. App. 3d 25, 35 (1997)
So, when arguing that a substantial change in circumstances has occurred, focus on the modification and it’s benefits in order to lower the threshold for a “substantial change” (whatever that even means).
When arguing that a change in circumstances has not been substantial enough, completely ignore the impact of the proposed modification in order. Emphasize how the circumstances have either not changed or not changed in a way that is “substantial.”
For financial matters such as child support and maintenance modifications, argue the proposed change as a percentage (if the percentage change is high) or as a sum (if the effective changed support is high).
What Is Not A Substantial Change In Circumstances?
In 2016, Illinois changed child support and maintenance laws. Then in 2019, Illinois changed the maintenance law again to accommodate the new federal law that made alimony taxable to the payor.
These legislative changes, by themselves, do not constitute a substantial change in circumstances for the purposes of modifying child support or maintenance.
“The enactment of Public Act 99-764 itself does not constitute a substantial change in circumstances” 750 ILCS 5/510(a)
“The enactment of this amendatory Act of the 100th General Assembly itself does not constitute a substantial change in circumstances warranting a modification.” 750 ILCS 5/510(a-5)
Forseeability And Support Modification In Illinois.
The rule used to be that a change in circumstances must occurs without both parties having considered that specific change at the time of the agreement. Otherwise, the change is deemed to be NOT substantial enough to allow for a modification of support. “[A] substantial change in circumstances will not be found when the parties’ present circumstances were contemplated when they entered their agreement.” Salvatore v. Salvatore (In re Marriage of Salvatore), 429 Ill. Dec. 626, 633 (Ill. App. Ct. 2019)
How would you have proven that the change was previously contemplated by the parties? You prove it through the language of the agreement of (more likely) through the testimony of the parties as to what was discussed and, thus, contemplated at the time of agreement.
Almost anything could have been contemplated if logical and obvious. “[T]he aging of the children in this case was…a fact anticipated in the entry of the initial allocation.” In re Marriage of Trapkus, No. 3-19-0631, 17 (Ill. App. Ct. 2022)
The impossibility of knowing what was truly contemplated at the time of the agreement led to a change in the statute eliminating the requirement of unforseeability when allowing a modification of child support or maintenance.
“Contemplation or foreseeability of future events shall not be considered as a factor or used as a defense in determining whether a substantial change in circumstances is shown, unless the future event is expressly specified in the court’s order or the agreement of the parties incorporated into a court order.” 750 ILCS 5/510(a)(1)
Of course, the parties can still contract for a foreseeable or contemplated element before allowing a modification of child support or maintenance.
“The parties may expressly specify in the agreement incorporated into a court order or the court may expressly specify in the order that the occurrence of a specific future event is contemplated and will not constitute a substantial change in circumstances to warrant modification of the order” 750 ILCS 5/510(a)(1)
If you’re trying to modify an Illinois family law order or your ex-spouse is attempting to allege a substantial change in circumstances, contact my Chicago, Illinois family law firm and speak to a Chicago divorce lawyer.