Substantial Change and Divorce

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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What Is A Substantial Change In Circumstances In An Illinois Divorce?

Substantial Change and Divorce

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)

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)

Modifying Child Support

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.

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).

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)

The statute then directs us to factors that can specifically guide the court in finding a substantial change in circumstances.

“(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)

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)

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.