Separation and divorce often have a profound impact on children and arguing about child support doesn’t help. And while the parents may no longer wish to live together as a couple, they remain legally responsible for their children until they reach adulthood. In particular, no parent can avoid their legal obligation to provide financial support for their children.
If the separation or divorce is amicable, the parents may come to an agreement with respect to child support. Unfortunately, such cooperation is not always possible. When that is the case, an Illinois court must step in and establish each parent’s legal support obligations.
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Child support refers to the basic living expenses necessary to establish and maintain a child’s home. At a basic level, this includes ordinary household expenses, such as rent or mortgage payments, utilities, and furnishings. It also includes the child’s personal needs, including clothing and food, as well as their medical and educational-related expenses.
It is important to note that child support is just that–support for the child. It is not intended to support the receiving parent’s own lifestyle. Illinois has separate laws governing spousal support or alimony. But any money considered child support must be for the child’s benefit. If for any reason the receiving parent does not need all of the support for a particular month, they must save or retain that money for the child’s future needs.
Before July 2017, Illinois law based child support on two main factors: The income of the parent paying the support and the number of children requiring support. After taking the paying parent’s gross income and deducting certain expenses, a judge would then fix the final support figure as a percentage of net income–with the percentage increasing based on the number of children requiring support.
But under new rules that took effect in July 2017, and which remain in force today, a judge will now look at the combined net income of both parents before making a support determination. The judge will also take into consideration how many overnights the child spends with each parent. This “income shares” model for child support enables the court to look at a more complete picture of the costs necessary to raise and support a child.
Since a parent’s income is the key factor in determining their child support obligation, you might be wondering, “What happens if a parent loses their job? Does their support obligation go away?” The short answer to the second question is a definitive “no.” Keep in mind, child support is mandated by Illinois law and the courts. So the mere fact that a parent has lost their job does not, in and of itself, reduce or eliminate the child support obligation.
Indeed, the main reason for this is that a parent could easily try to avoid child support simply by quitting their job–or if they are self-employed, voluntarily reducing their income to effectively nothing. Or perhaps a parent simply leaves a higher-paying job for a lower-paid position.
So when a parent is unemployed or earning less money than they previously were, the other parent can ask the court to decide if this unemployment or underemployment is “voluntary” or “involuntary.” In other words, is the parent with the support obligation trying to shirk their responsibilities by choosing to make less money? Or did they lose their job, or experience a significant decrease in net income, through no honest fault of their own?
If the judge decides the parent’s unemployment was involuntary, then that parent’s support obligations may be reduced to account for their lower income. One thing to note here: If an involuntarily unemployed parent receives unemployment insurance benefits, that is considered income that may be applied towards outstanding child support payments.
On the other hand, if the court decides the parent is voluntarily unemployed, then the judge can actually order the parent to look for a job. Illinois law actually spells out the court’s authority on this point in significant detail. To briefly outline the law, a judge can order a voluntarily unemployed or underemployed parent to take any or all of the following steps:
Another thing an Illinois judge can do if a parent refuses to work is a process known as “imputation” of income. Basically, the judge will base their support calculations on what the parent should be earning, which may be greater than what they are currently earning. Again, it must be emphasized that imputation is designed for situations where a parent is voluntarily unemployed or underemployed. A judge may not impute income simply because the parent might theoretically be able to get a better-paying job.
But let us consider an extreme example: A parent required to pay child support is currently earning $100,000 per year as an accountant. The parent then chooses to quit that job and decides to start mowing people’s lawns for minimum wage. Under these circumstances, the court could “impute” the parent’s former income as an accountant and continue to base child support payments on the higher figure.
In short, a court may impute income if any of the following three tests are met:
1. The parent is voluntarily unemployed.
2. The parent is clearly attempting to evade a support obligation.
3. The parent has unreasonably failed to take advantage of a viable employment opportunity.
In Illinois, the Department of Child Support Services (DCSS) has the legal authority to engage in child support collection activity. The DCSS relies on non-judicial (i.e., administrative) processes to enforce child support orders against a parent who refuses to work. Among the tools at the disposal of DCSS:
At the same time, if you are the parent who is owed child support, you do not need to wait for the DCSS to take action. You can–and in many cases, should–go to court yourself to enforce a previously established child support order. Remember, as the custodial parent you need to act in the best interests of your child, especially when the non-custodial parent chooses not to live up to their responsibilities.
After dealing with the trauma of a divorce, many parents are understandably reluctant to head back into court, even when they know the other parent is refusing to work or make child support payments. But when your children’s happiness and well-being is at stake, you should never hesitate to do what you know is right. And at the end of the day, child support is not a suggestion–it is an obligation.
At Keller Legal Services, our child support attorneys represent clients seeking to enforce orders. We understand the complex web of Illinois laws governing support calculations and enforcement. And we will zealously represent you and your family’s best interests before a judge if that becomes necessary. Contact us today to schedule a free, confidential consultation.