A Guide To Child Support Under the Illinois Marriage and Dissolution of Marriage Act ("IMDMA")
Public Policy of Child Support
Illinois public policy mandates that children have a right to physical, mental, emotional and financial support of their parents, whether or not their parents married. Moreover, both parents share the responsibility for the support of their children, even if the responsibility might not be shared equally. This responsibility continues until the child is emancipated (generally age 18), though settlement agreements will generally continue child support so long as the child is still in high school. (College expenses, while a form of child support, are dealt with separately as explained here.)
Who Must Pay Child Support?
In the traditional model (i.e., one parent being the primary custodian with the other parent having typical weekend visitation) the non-custodial parent pays child support. The reasoning is that while both parents must contribute financially to the children, the custodial parent contributes indirectly through a larger home to accommodate the children, and increased food and utility costs. However, in circumstances where the parents have a "split-custody" arrangement (e.g., a 50/50 split of time on a weekly or bi-weekly basis; different children residing with different parents; or one parent having a very large block during the summer), it is not uncommon for the court to not apply or grossly deviate from statutory guidelines, including not setting child support at all.
Statutory Guidelines For The Amount of Child Support
In the vast majority of situations, the amount of child support to be paid is determined by statutory guidelines as a percentage of net income based on the number of children as follows:
Number of Children Percent of Supporting Party's Net Income
6 or more 50%
Based on Net Income
"Guideline" child support is based on the net income of the payor spouse. However, "net income" in the business context is not the same as "net income" as defined by statute and has been the subject of much litigation. IMDMA Section 505(a)(3) defines "net income" for child support purposes as the "total of all income from all sources" less federal and state income tax, social security, legally required employment contributions, union dues, health insurance premiums, prior support and maintenance obligations, expenditures on medical expenses, and expenses "for the production of income."
Oftentimes, unaware attorneys may use net income as stated on a tax return. However, this can include deductions that are not recognized by the child support statutes, including dependency exemptions, standard deductions, and non-cash business expenses such as bad debt write downs or depreciation. Under such scenarios, the statutory definition yields a much higher amount of "net income" and a higher support obligation than those derived from taxable net income on a tax return.
Deviation from Guideline Support
A court can deviate from the statutory guidelines for child support in certain situations. In doing so, the court will look to IMDMA section 505(a)(2), which lays out the following 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 and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.
More importantly, the court can deviate from the guidelines if application of the guideline would be inappropriate. Such circumstances include the paying spouse's income far exceeding the custodial parent's income or the child's needs, which would simplyresult in a windfall to the custodial parent; when "net income" is difficult to determine; or in split-custody situations.
Even if the court does deviate from the guidelines, it still must make findings under the statutory factors of Section 505(a)(2), and also make a finding of what guideline support would have been. Moreover, the court must make such a finding even if the parties agree between themselves to a deviation from support.