Child Support Is Always Modifiable
Illinois public policy dictates that child support awards are always modifiable, upon a showing of the appropriate circumstances discussed below. Any attempts in a settlement agreement to limit child support or prevent any modification are automatically void.
Modifications Must Be Overseen By The Court
Sometimes parties will agree amongst themselves to modify child support without seeking approval of the court. However, these agreements are unenforceable and a party can always demand the terms of the original award. The only way to ensure that a modification becomes binding is to seek approval of the court. Moreover, a parent cannot unilaterally change support in response to another dispute (e.g., visitation and maintenance disputes) The public policy of this requirement is that courts have an obligation to ensure that children are supported, and such "self help" modifications deprive children of their needs.
Non-Modifiability of Past Child Support Payments
Often times, a change in circumstances has occurred that might merit a child support modification. If so, the party seeking the modification must act quickly as any change will only go back to the date of the filing of the modification petition. All child support payments which became due prior to the filing date are considered separate judgments, and the recipient has a vested right to that payment. It is as though every month that passes, the judge's gavel comes down once again for the payment for that month, and changing a past child support payment without the agreement of the other party is a near-impossible task.
Substantial Change In Circumstances Required
The test of whether a court will allow a modification of child support is whether there has been a "substantial change in circumstances". The person seeking the modification has the burden of showing such a change by evidence of an increase in the child's needs. A mere increase in the general cost of living will not suffice. Moreover, the increased needs of the child will be measured against the payor parent's ability to pay child support. A modification is in order only if there is a "substantial imbalance" between the two.
Examples of "Substantial Change in Circumstances" include:
Increased Ability to Pay
Even if the child's needs have not increased, if the payor parent's ability to pay has increased, this alone can be viewed as a substantial change that warrants a modification. "Ability to pay" means increased income, or decreased expenses. IMDMA Section 510 (modification of support and maintenance) states that a 20% change in net income is a substantial change as a matter of law. The legal rationale is that IMDMA Section 505 (child support guidelines) considers the standard of living the children would have enjoyed had the marriage continued as a factor for child support. Therefore, if a parent earned more money and had the marriage continued, the child would presumably would have benefited.
Change in Income, Assets, or Employment
Just like the increased ability to pay is a substantial change in circumstances, a decrease in income can be a substantial change as well. As an example, a change in employment, even if voluntary, which decreases the payor spouse's income will suffice, so long as the change in employment was in good faith and not an attempt to avoid child support obligations. The same applies to the recipient spouse – an increase or decrease in employment and/or income may be considered a change in circumstances warranting an increase or decrease in child support. However, an increase in the recipient party's income or resources cannot be used to force the payor spouse to pay support beyond his or her financial means.
Other "Substantial Changes"
A change in legal or residential custody from one parent to the other, a drastic change in parenting time, other income available to support a child (such as a trust fund or a lucrative career), or emancipation can all be substantial changes that can warrant a decrease or cessation of child support.