DuPage County Divorce Lawyer Blog
Let’s examine the hypothetical case of Karl. Karl is going through a divorce from his second wife, with whom he has two minor children. Karl also has two children that he is legally obligated to support from his first marriage, pursuant to a court order. Karl wonders his obligations to pay support to one wife will be taken into account when calculating how much he has to pay in child support to the other. The answer in Illinois is yes. On July 1, 2017, changes to the Illinois Marriage and Dissolution of Marriage Act have added the multi-family adjustment to Section 505. The language of Section 505 regarding the multi-family adjustment provides as follows:
(F) Adjustments to income.
- Multi-family adjustment. If a parent also is legally responsible for support of children not shared with the other parent and not subject to the present proceeding, there shall be an adjustment to net income as follows:
- Multi-family adjustment with court order. The court shall deduct from the parent’s net income the amount of child support actually paid by the parent pursuant to a support order unless the court makes a finding that it would cause economic hardship to the child.
In the current scenario, when calculating child support in his second divorce, Karl can take a deduction from his net income in the amount of child support that he actually pays to ex-wife number one. Similarly, if after the divorce, ex-wife number one seeks a modification of child support, the court will take into consideration the amount of child support he is court-ordered to pay ex-wife number two. Under prior law, ex-wife number one would have always received support based on Karl’s total net income. Ex-wife number two would have always received support based on what was left of Karl’s income after he paid ex-wife number 1. Worse, it was an abuse of discretion for the court to deviate from the statutory child support guidelines solely due to a prior child support obligation for another family. See In re Marriage of Stanley.
In short, the current law treats Karl’s obligations to ex-wife number one and ex-wife number two equally. Neither ex-wife gets “priority” for child support purposes.
Multi-Family Adjustment Without Court Order:
Now, let’s complicate the scenario. It’s 5 years after Karl’s divorce from ex-wife number two, and Karl is now re-married and has a newborn baby with wife number three. His ex-wives want to take him back to court to modify his child support obligation, because he got a new job making a lot more money. Even though there’s no court order for him to pay “child support” for his baby with wife number three, shouldn’t the fact that he has a child in his care, whom he supports, be taken into consideration? The statute now allows for that. This new provision reverses prior case law, which did not consider a support obligation that was merely “ethical,” rather than court ordered. See In re Marriage of Tatham.
Section 505(a)(3)(F)(ii) provides:
- Multi-family adjustment without court order. Upon the request or application of a parent actually supporting a presumed, acknowledged, or adjudicated child living in or outside of that parent’s household, there shall be an adjustment to child support. The court shall deduct from the parent’s net income the amount of financial support actually paid by the parent for the child or 75% of the support the parent should pay under the child support guidelines (before the adjustment), whichever is less, unless the court makes a finding that it would cause economic hardship to the child. The adjustment shall be calculated using that parent’s income alone.
Under this section of the statute, the court has two options when considering the support Karl pays for a child for whom there is no court order:
- It can calculate all of the expenses that he currently pays for his child, including without limitation, clothing, medicine, food, health insurance, and other monthly expenses (supported by a Financial Affidavit), and deduct that amount from his net income; or
- Calculate how much support he would have to pay to his current spouse should they ever separate. Then, take 75% of that number.
The court will give Karl the deduction using calculation #1 or #2, whichever is less, for purposes of re-calculating the support owed to his ex-wives. However, the court does have the discretion to disallow the multi-family adjustment if it finds that there would be an economic hardship to the children whose support is being modified.
There are certainly many questions that may be raised as to how the statute will apply in various circumstances. Because the law is relatively new, there have been few cases taken up on appeal and ruled on by the Appellate Court to date, so there remains some uncertainty. Modifying child support when multiple families are involved is a complex issue that you should not go at alone. If you need legal assistance in this area, please contact our firm to schedule a free consultation.