Whenever a celebrity gets divorced, we read about eye-popping numbers of support awarded. The commentary inevitably shifts to “the kids don’t cost that much to raise” and “she doesn’t need all that money.”
In an Illinois divorce, similar sentiments are couched in the objection to a guidelines support award as being a “windfall.”
Windfalls In An Illinois Child Support Award
Child support is ordered in Illinois based on “the guidelines.” “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” 750 ILCS 5/505(a)(2)(emphasis mine)
“In any action to establish or modify child support, whether pursuant to a temporary or final administrative or court order, the 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)(3.4)
The guidelines amount may result in possibly absurd results like a parent paying 50% of his or her income to a parent who is already wealthy. Such guidelines child support results may be deviated from.
“The court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate. Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.4)
“The [Illinois Marriage and Dissolution of Marriage] Act was not intended to create windfalls but, rather, adequate support payments for the upbringing of the children. We remand this issue to the trial court for determination of a reasonable specific monthly support amount.” In re Marriage of Bush, 547 NE 2d 590 – Ill: Appellate Court, 4th Dist. 1989
“Despite the requirement that a court consider a child’s station in life, the courts are not required to automatically open the door to a windfall for children where one or both parents have large incomes. A large income does not necessarily trigger an extravagant life-style or the accumulation of a trust fund. A large increase in income will not necessarily result in an equal change in one’s life-style.” In re Marriage of Bush, 547 NE 2d 590 – Ill: Appellate Court, 4th Dist. 1989
The windfall defense to a child support award really only occurs when both parents are high-income earners.
“Where the individual incomes of both parents are more than sufficient to provide for the reasonable needs of the parties’ children, the court is justified in setting a figure below the guideline amount. In determining the child support obligation of a high-income parent, the court must balance competing concerns. On the one hand, child support awards are not intended to be windfalls. On the other hand, the court must consider the standard of living the children would have enjoyed absent parental separation and dissolution. Thus, child support is not to be based solely upon the shown needs of the child.” In re Marriage of Singleteary, 687 NE 2d 1080 – Ill: Appellate Court, 1st Dist., 3rd Div. 1997 (citations omitted)
If the party receiving child support is not a high-income earner, there can be no windfall (even if they don’t spend the money on the child and save all the money).
“[The parent receiving child support’s] net annual income of $19,200 is nominal compared to [the payor parent’s] averaged net income of $214,255 and clearly could not be considered sufficient to provide the reasonable needs of [the child], taking into account her lifestyle before her parents’ dissolution.” In re Marriage of Garrett, 785 NE 2d 172 – Ill: Appellate Court, 5th Dist. 2003
Even if the child support receiver starts earning more money after the child support award is made that does not automatically create a windfall basis for deviation from guidelines.
“[An I]ncrease in income does not amount to a windfall for [the child support receiver]” In re Marriage of Connelly, 145 NE 3d 724 – Ill: Appellate Court, 3rd Dist. 2020
The windfalls object is, in the end, an acknowledgement that “the support schedules contained in the statute have less utility as the net income of the parties increases because the schedules are premised upon percentages related to average child-rearing expenses.” In re Marriage of Scafuri, 561 NE 2d 402 – Ill: Appellate Court, 2nd Dist. 1990
If a windfall is found, the appropriate amount of child support is, alternatively, based on the needs of the children.
“The trial court determined that the guidelines would indicate that an award of $5,510 per month was appropriate. However, the trial court found that such an award would result in a windfall to the children. Based upon the relative financial needs and resources of the parties and the standard of living respondent’s son would have enjoyed had the marriage not dissolved, the court determined that $3,000 per month was adequate.“ In re Marriage of Ackerley, 775 NE 2d 1045 – Ill: Appellate Court, 2nd Dist. 2002
Looking stingy towards one’s own child is not a good look. Best practice is to suggest that guidelines support is a windfall but child support from a high-earner not be solely limited to the needs of the child. The court split the figurative baby in In re Keon C., 800 NE 2d 1257 – Ill: Appellate Court, 4th Dist. 2003 when it ruled “Here, clearly, the trial court recognized that awarding petitioner 20% of respondent’s 2001 income would amount to an excess and to “some” windfall to petitioner and her son from another relationship, and the court appropriately deviated downward from the 20% guidelines.”
Courts that are inclined to award an upward deviation of child support will also be subject to a windfall objection. The “contraven[tion of section 505(a)(3) [of the Illinois Marriage and Dissolution of Marriage Act, which governs what is deemed ‘income’ for support], creat[es] a ‘windfall’ for petitioner.” In re Marriage of Solecki, 166 NE 3d 184 – Ill: Appellate Court, 2nd Dist. 2020
High-earners can best explain their use of the windfall objection as a way to bolster their children’s values and to not spoil them. The New Jersey case of Isaacson v. Isaacson, 792 A. 2d 525 – NJ: Appellate Div. 2002 makes this argument eloquently “a balance must be struck between reasonable needs, which reflect lifestyle opportunities, while at the same time precluding an inappropriate windfall to the child or even in some cases infringing on the legitimate right of either parent to determine the appropriate lifestyle of a child. See Laura W. Morgan, Child Support and the Anomalous Case of the High-Income and Low-Income Parent: The Need to Reconsider What Constitutes “Support” in the American and Canadian Child Support Guideline Models, 13 Can. J. Fam. L. 161, 195 (1996). This latter consideration involves a careful balancing of interests reflecting that a child’s entitlement to share in a parent’s good fortune does not deprive either parent of the right to participate in the development of an appropriate value system for a child. This is a critical tension that may develop between competing parents. Ultimately, the needs of a child in such circumstances also calls to the fore the best interests of a child.”
Windfalls In An Illinois Maintenance Award
Similarly, objections can be made to an excessive maintenance (formerly known as alimony) award in an Illinois divorce.
“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/504(b-1)
Guidelines maintenance is more formulaic and, thus, less subject to challenge via a windfall objection.
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/504(b-1)(1)(A)
“The court is not required to order maintenance in accordance with the statutory guidelines.” In re Marriage of Hamilton, 128 NE 3d 1237 – Ill: Appellate Court, 5th Dist. 2019
“To be clear, section 504(b-1)(1) does not mandate strict compliance with these formulas in every case. Rather, the statute provides that the guidelines must be followed ‘unless the court makes a finding that the application of the guidelines would be inappropriate.’ In re Marriage of Brill, 87 NE 3d 302 – Ill: Appellate Court, 2nd Dist. 2017
“Ordering [a maintenance payor] to pay 20% of his bonuses as uncapped maintenance sets up a potential windfall for [the maintenance payee] and has no evidentiary relation to her present needs or the parties’ standard of living during the marriage.” In re Marriage of Micheli, 15 NE 3d 512 – Ill: Appellate Court, 2nd Dist. 2014
This means all maintenance awards of future bonuses at a set percentage with no ceiling (this happens all the time) are impermissible. While there is no caselaw on this, perhaps it can be argued that any award of maintenance above 33% of a $ 500,000 income is de facto a windfall because it is effectively open ended with a subsequent modification. Of course, the answer to that would be “we’ll determine if it’s really open-ended at the modification”.Maintenance awards are rarely subject to a windfall objection because the basis of a windfall objection is that the purpose of support is the beneficiary of the support (children) and any surplus support going to the other parent is inappropriate.
Many Illinois divorce support orders have both a child support and a maintenance award. The existence of a child support order subjects a maintenance award to a possible windfall objection.
“In light of the child support and spousal support, it would have been fair to equally split the healthcare costs, but the trial court’s finding that it would be a windfall to the wife to increase child support and make the husband pay 50% of the uncovered healthcare costs was not an abuse of discretion.” In re Marriage of Schlei, 46 NE 3d 286 – Ill: Appellate Court, 3rd Dist. 2015
Windfalls In The Division Of Marital Assets
As the above descriptions in this article make clear, Illinois courts allow for child support be deviated from due to a windfall to a particular parent. Illinois courts will rarely entertain windfall objections for maintenance awards and, usually, only if there is an existing and concurrent child support award.
The windfall objection is not applicable to an Illinois court’s proposed or ordered division of marital assets.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
“The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989
If the division appears unjust, argue why the division is unjust. No “windfall” buzzword in necessary.
The best claim that your spouse has some asset they should not have is done via an unjust enrichment claim.
“Illinois recognize[s] an independent cause of action for unjust enrichment.” Peddinghaus v. Peddinghaus, 692 NE 2d 1221 – Ill: Appellate Court, 1st Dist., 1st Div. 1998
An unjust enrichment claim can be included as a separate count in an Illinois divorce.
“[An Illinois] trial court could, in the exercise of its inherent equitable authority, grant relief pursuant to a claim for unjust enrichment presented in conjunction with a dissolution petition.” In re Marriage of Fahy, 567 NE 2d 552 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991
If the proposed or ordered division of assets is so egregious, an unjust enrichment claim may underline the injustice much better than arguing that the court inaccurately “considering all relevant factors” 750 ILCS 5/503(d) when dividing the marital assets.
“The doctrine of unjust enrichment underlies a number of legal and equitable actions and remedies, including the equitable remedy of constructive trust and the legal actions of assumpsit and restitution or quasi-contract. To state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 160 (Ill. 1989)
It’s the exact same concept as a windfall but unjust enrichment emphasizes that the other party simply has more of what you should have. There’s no need to even prove that you are inherently more worthy of the award.
“Unjust enrichment does not require any wrongdoing on the part of the enriched party, but only that property is held by him under such circumstances that in equity and good conscience he ought not to retain it.” Appelman v. Appelman, 410 NE 2d 199 – Ill: Appellate Court, 1st Dist. 1980
This is America. We’re all here for a windfall. But, don’t let that stop you from objecting to an overly generous support award. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois divorce attorney.
Russell Knight has been a licensed, practicing attorney in Illinois for almost 20 years. Russell Knight has successfully objected to support award because of windfall numerous times. Russell Knight has also evaded windfall objections by pointing out what windfalls are AND what windfalls are NOT.
Cases And Statutes Cited In The Windfall And Divorce In Illinois Article
Appelman v. Appelman, 410 NE 2d 199 – Ill: Appellate Court, 1st Dist. 1980
HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 160 (Ill. 1989)
In re Keon C., 800 NE 2d 1257 – Ill: Appellate Court, 4th Dist. 2003
In re Marriage of Ackerley, 775 NE 2d 1045 – Ill: Appellate Court, 2nd Dist. 2002
In re Marriage of Brill, 87 NE 3d 302 – Ill: Appellate Court, 2nd Dist. 2017
In re Marriage of Bush, 547 NE 2d 590 – Ill: Appellate Court, 4th Dist. 1989
In re Marriage of Connelly, 145 NE 3d 724 – Ill: Appellate Court, 3rd Dist. 2020
In re Marriage of Fahy, 567 NE 2d 552 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991
In re Marriage of Garrett, 785 NE 2d 172 – Ill: Appellate Court, 5th Dist. 2003
In re Marriage of Hamilton, 128 NE 3d 1237 – Ill: Appellate Court, 5th Dist. 2019
In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989
In re Marriage of Micheli, 15 NE 3d 512 – Ill: Appellate Court, 2nd Dist. 2014
In re Marriage of Singleteary, 687 NE 2d 1080 – Ill: Appellate Court, 1st Dist., 3rd Div. 1997
In re Marriage of Schlei, 46 NE 3d 286 – Ill: Appellate Court, 3rd Dist. 2015
Isaacson v. Isaacson, 792 A. 2d 525 – NJ: Appellate Div. 2002
Peddinghaus v. Peddinghaus, 692 NE 2d 1221 – Ill: Appellate Court, 1st Dist., 1st Div. 1998
Frequently Asked Questions About Windfalls In An Divorce In Illinois
What is a “windfall” in an Illinois divorce? Windfall is not a statutory term in Illinois. Rather, it is an expression used by Illinois caselaw which allows courts to deviate from guidelines support because the guidelines support would enrich the other spouse beyond the support they or their child needs.
When does a windfall objection to child support actually work? Only if both parents are high-earners does a windfall objection make sense. A high-earner receiving a very large child support payment really doesn’t need the child support in the amount the guidelines orders.
If the court finds a windfall, how is child support calculated instead? A windfall finding will allow an Illinois domestic relations court to deviate from guidelines support and set support at the actual needs of the child/former spouse.
Can a maintenance award be a windfall in Illinois? Rarely. Only in conjuction with a child support order or when a maintenance order is open-ended (like a percentage based order) can a windfall objection allow for deviation.
Can I argue that a division of marital property is a windfall? No. The windfall analysis only applies to child support and maintenance under current Illinois caselaw. An unjust enrichment claim provides similar relief for lopsided awards of marital assets.
