If My Ex Has an Increase in Income Will the Court Modify the Child Support Amount I Have to Pay?

If My Ex Has an Increase in Income Will the Court Modify the Child Support Amount I Have to Pay?

In Illinois, the parent paying child support cannot modify support using the other parent’s increased income as a substantial change in circumstances. While the new support law takes into account the income of both parents, there still needs to be a substantial change in circumstance to ask the court to modify the child support. It is problematic since every person who pays the support, wants the court to take a fresh look at the support obligation to include their ex’s income.

For those earning about the same about of income, or a bit more, can easily determine that their support obligation would go down if their ex’s income was now a part of the calculation. How does an obligor get the court to review it though?

It does seem unfair to watch some people modify their support obligation while others are still required to pay more than they should under the new statute. Shouldn’t the new statute be applied equally to everyone and allow everyone to pay the required amount under the statute? A lot of people are trying it, like the father in the recent Salvatore case, but they aren’t successful unless there is a change in circumstances.

Attempt to Modify Child Support In Re Marriage of Salvatore

The Illinois support statute reads as follows:

At all times relevant, section 801(c) of the Act has provided that “his Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.” 750 ILCS 5/801(c) (West 2014); 750 ILCS 5/801(c) (West 2016). Also at all times relevant, section 510(a)(1) of the Act has provided that an order for child support may be modified “upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a)(1) (West 2014); 750 ILCS 5/510(a)(1) (West 2016).

However, Public Act 99–764 notably added the following language to section 510(a):

“The court may grant a petition for modification that seeks to apply the changes made to subsection (a) of Section 505 by this amendatory Act of the 99th General Assembly to an order entered before the effective date of this amendatory Act of the 99th General Assembly only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of this amendatory Act of the 99th General Assembly itself does not constitute a substantial change in circumstances warranting a modification.” (Emphasis added.) Pub. Act 99–764 (eff. July 1, 2017) (amending 750 ILCS 5/510(a)).

A Change in the Law Does Not Meet a Substantial Change In Circumstance

In other words, you aren’t allowed to modify your support obligation by arguing the law changed, and that is your substantial change. The substantial change in circumstance cannot be that the law changed.

In Re Marriage of Salvatore Case Background

Years after the divorce, Daniel filed a petition to modify child support, arguing that his decreased income constituted a substantial change in circumstances. He further pled that the statute had changed, and under the new statute, his ex-wife’s income should now be factored into the equation. According to Daniel, his ex-wife’s gross income from her new job was approximately $45,000 per year. Daniel sought to lower his support from $8,100 a month to $3,244 using the new statute.

At the child support hearing, Daniel testified that his individual 2017 tax return showed a gross income that was significantly less than his gross income from previous years. However, his personal banking records showed he had several large sums of money deposited into his account that weren’t reflected on his tax returns.

Wife Argued Husband’s Financial Records with Fictitious

When Daniel completed his case, his ex-wife argued that his financial affidavit and tax returns were “completely fictitious” and that he was simply attempting to take advantage of the new child support guidelines in section 505 of the Act. In response, Daniel argued that there had been two substantial changes in circumstances: his decreased income and Brenda’s increased income. Over Brenda’s objection, the trial court allowed Daniel to amend his petition to conform with the proofs and add an allegation that Brenda’s increased income constituted a substantial change in circumstances. However, the new law also says that the modification shouldn’t be used as a means to lower support to the obligor.

Husband’s Financial Records “Not the Most Accurate”

The trial court began by finding that Daniel’s tax returns were “not the most accurate total of his income” and rejected his argument that they constituted a substantial change in circumstances. The Court next looked at whether the ex-wife’s new increased income could be a substantial change.

Mother’s Income Was Not a Factor in Determining Father’s Child Support Obligation

The Court said that “ the non-supporting parent’s income was not a factor in determining the supporting parent’s child support obligation.” In closing, the court ruled that Brenda’s current income could not be a basis to modify Daniel’s child support obligation.

Modification of Child Support Denied for Failure to Show a Change in Circumstance

Father’s Income Did Not Establish a Substantial Change

Daniel’s problem in this case, however, was that his income (or at least his proof of the income) did not establish a substantial change. It seems clear when you read the case that the Court really thought (probably rightly so) that he wanted to modify his support obligation due to his ex making a lot more money since the date of the divorce.

Appellate Court Reviews Income as the Substantial Change in Circumstance

The Court looked at the Hughes case. In Hughes, the ex-wife filed a petition to modify the ex-husband’s child support obligation, based on the ex-husband’s increased income due to the termination of his maintenance and car payments. Hughes, 322 Ill. App. 3d at 817. The trial court granted the petition and increased the ex-husband’s child support obligation, based on these changes in his “ ‘financial situation.’ “ Id. at 818. The Appellate Court reversed, however, holding in pertinent part:

“The increase in available income to pay child support following the termination of maintenance and car payments did not constitute a substantial change in circumstances because these events were contemplated and were expected by the court when the judgment for dissolution of marriage was entered.” Id. at 819.

Cannot Rely on an Event Contemplated When Child Support Originally Set

The events contemplated in Hughes were certain to occur, and Daniel’s ex-wife going to work and earning more income was also contemplated. The Appellate court said that Daniel cannot rely on the occurrence of an event that he contemplated when he negotiated these other contractual obligations. To rely on the occurrence of an event to establish a substantial change in circumstances that would trigger a downward modification of his child support obligation now would not be allowed. The Appellate court affirmed the trial court and said the court was correct in refusing to consider the ex-wife’s income as a basis for determining whether there was a substantial change in circumstances.

Attempts to Modify Support Obligation Because of Change in Law Not Permitted

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