The question “How can I modify my child support” is one of the most frequently asked questions in family law. Child support is often a hotly contested issue, as many parents feel like they are paying too much, or their ex-partner is paying too little. But, opinion has little to do with it. Child support is set by Illinois state guidelines, so it is usually just a matter of doing the math based on what each party is earning and how much time they spend with the child under the current law. That said, there are important deviations, credits, and other nuances that an experienced family law attorney can educate you about, as well as providing you with assistance in navigating your case through the court system expediently and efficiently.
The Recent History of Child Support Law in Illinois
The first thing to know is that in the fall of 2016, the Illinois legislature made a major change to how child support is calculated. Prior to 2016, the state would only look at the income of the parent who exercised less parenting time with the children, i.e. the minority parent. The state would then assess a child support obligation based on a percentage of their income, such that for one child a parent would pay twenty percent of their income in child support, twenty-eight percent for two children, thirty-two percent for three children, and so on. The law did not consider how much time the children were spending with the minority parent at all.
In the fall of 2016, as part of a sweeping revision to domestic relations law that included getting rid of the term “custody”, the legislature changed the child support calculation model to a shared-income model. Instead of looking only at the income of the parent with less parenting time, the shared-income model combines their incomes to mimic what their household income would be like had the parents never split up. The result is that both parents are now assessed a child support obligation, but only one parent actually makes payments toward that obligation.
Impact of Overnight Parenting Time
The other major change is that the amount of time a parent spent with their child had an impact on the child support amount, which was not considered before. Now, if the parent exercising less time has over 146 overnights with the child, their child support obligation decreases significantly because they are already providing significant support to the child/children in their home. It is important to understand that this formula only considers overnights, not days spent with the child, when determining whether a parent is entitled to this deduction.
If you have a child support order from before 2016, it is important to know that the factors and way the support amount is calculated have totally changed and the new law will be applied if either you or your ex-partner seeks to modify child support. It is critical to consider how those changes could impact your support amount before proceeding with a modification, to your detriment or your advantage. Talking to an experienced family law attorney can help you understand whether a modification could be financially beneficial to you, or not.
Can My Child Support Be Modified Without Going to Court?
If the parties have a formal child support obligation, i.e. a child support order, the amount and frequency of the payments are set and enforced through a court order. In that case, it is not possible to change one’s child support without a court order reflecting that change. It is also important to note that the child support obligation remains in effect, for the amount included in that order, until a judge agrees to modify the amount. Child support does not automatically change just because someone has lost their job or had some other change income, and the fact that a person feels they cannot pay it does not mean they do not owe child support.
Child support modification require a new support order with the new support amount. The way that child support is usually changed is by filing a Motion to Modify Child Support. Per the current law, the person seeking to change the support amount must state that a “substantial change” has occurred in order to reduce or increase the child support amount. This change could include an involuntary job loss or salary decrease, an increase in the other parent’s income, or it could be a change in the child’s needs and expenses. Any of these could constitute the “substantial change” necessary to modify the child support obligation.
It is important to know that quitting a job, or the decision to go back to school or go down to part-time, does not entitle you to a reduction in your child support. Any reduction in income must be involuntary to qualify. Also, it is important to know that even if your ex-partner is earning more money at a new job, or through a promotion, that may not be sufficient grounds to modify a child support obligation if you are also earning more money than you were when the last child support order was entered. Finally, the change in the law is not grounds for a modification of child support. If you have a child support order from before the fall of 2016, you must show a substantial change in circumstances other than the change in the law to have the support amount modified.
There are no guarantees with child support modification — a substantial change in circumstances is an issue to be decided by the judge, and the new support number is based on both incomes. So, unless there has been a large change in the parents’ financial circumstances, it can be difficult to ensure a specific outcome until financial information has been exchanged and the numbers crunched.
How Long Does It Take to Modify Child Support?
Child support modifications are not terribly complicated, as the support amount is based on the parents’ incomes and the parenting time schedule. When one party files their motion to modify the child support obligation, the parents must exchange statements about their incomes and expenses, called financial affidavits, and provide documentation verifying their incomes for the past two years. Once that information has been exchanged, the new child support amount is calculated using those incomes and the number of overnights the child spends with each parent.
The parents can argue that they are entitled to a deviation from the guideline support amount, either up or down, depending on factors like the needs of the child and expenses for the parent. For example, a parent whose child lives out of state might be able to reduce their monthly child support obligation because they must pay travel costs to exercise their parenting time. Another example would be that a parent of a child with significant special needs might be able to successfully convince the judge to an upwards deviation from the guidelines because this child requires additional financial support. Deviations are entirely up to the judge’s discretion and will be considered on a case-by-case basis.
After the new child support amount has been calculated, the judge enters a new child support order, called a Uniform Order for Support, for the new monthly support amount. This can often be done by an agreement because the support amount is set by pre-existing factors and the current guidelines. Ideally, the process would be done in somewhere around six months.
What can slow down a child support modification is if one party refuses to turn over the financial information or turns over an affidavit that does not honestly reflect their total income. Busy court calendars can also slow the process down because it can take a while to get your case in front of the judge and to get an order modifying the child support amount. Factors like these can extend the modification process by several months, maybe even more than a year.
Should I Hire a Lawyer to Modify Child Support?
The simple answer is yes. While child support modification is not a terribly complicated process, it is absolutely in your best interest to have an experienced and knowledgeable child support lawyer there to help guide you through the process. Your attorney has the information about how child support is calculated and can advise you on possible ways to lower your support amount.
For instance, parents who provide health insurance are entitled to a reduced amount based because they are paying for that benefit for the child. Likewise, parents with children from other relationships are also entitled to a reduction in child support. Most importantly, the person who files the motion for modification support is entitled to relief retroactive to the date of filing. This means that if you file to lower your child support amount you will be entitled to repayment, or credit, for the difference between your old support amount and your new one. While retroactive relief is part of the statute, it is critical to know to ask for it, and include if your new child support order, or you will lose out on that relief. These credits could easily be missed by a parent representing him or herself because they are not knowledgeable about all of the credits and retroactive relief they are entitled to under the law.
A child support attorney can also help to expedite the process by keeping your case moving quickly and ensuring that timelines are followed and, if necessary, enforced by the judge to avoid unnecessary delays. As child support modifications can be entered by agreement, and often are, an experienced attorney can also help to negotiate an agreed modification without having to take the matter to hearing before the judge, which can save you both time and money.
Likewise, having an attorney helping you in your case to modify child support is the best way to ensure that the calculations are accurate, and the order is entered correctly. If the wrong box is checked, a monthly obligation could become a biweekly obligation, and the only way to fix such a significant error would be to go back to court to modify that order. Having an experienced family law attorney who knows the law, and the math is the best way to ensure that your support modification is done right.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/child-support-modification/how-can-i-modify-my-child-support/