DuPage County Divorce Lawyer Blog

Illinois Child Support Law: A Proposal to Change from the “Percentage Of Income” Formula to an “Income Share” Model

Published on: December 8, 2014 | Kollias, P.C.

Currently, Illinois uses a “percentage of income” formula to calculate a parent’s child support obligation to the custodial parent. This formula calculates child support by multiplying the noncustodial parent’s net income by a certain percentage to determine that parent’s guideline child support obligation. The guideline percentage varies depending on the number of children between the parties. For one child, guideline support is 20% of the noncustodial parent’s net income. For two children, it’s 28%. For three, it’s 32%, and so on. This way of calculating a noncustodial parent’s child support obligation has been in effect since the 1980’s and some argue it is due for makeover.

For one, opponents of Illinois’ current calculation method argue that it fails to automatically take into account the income of the custodial parent. Rather, in Illinois, the court will determine strictly by looking at the noncustodial parent’s income in the overwhelming majority of cases. In order for a court to consider the custodial parent’s income, the noncustodial parent would have to specifically request that the court deviate from statutory guidelines. Deviation often requires negotiation and litigation. In the end, the court will determine how much to deviate from guidelines based upon what the judge believes to be fair. As a result, outcomes may vary from case to case and courtroom to courtroom.

Take, for example, the recently-decided case of the Marriage of Turk. In that case, the custodial father made over $150,000 per year, while the noncustodial mother earned less than $10,000 per year. As a result, the court actually ordered the custodial parent to pay child support to the noncustodial parent, so that she could provide for the children when they were visiting with her. While the Supreme Court eventually decided that the current child support law does permit such an outcome, the parties had to litigate the case all the way up to the Supreme Court over a period of several years to obtain that result. Worse, the Supreme Court then remanded the case for further evidentiary hearings to determine what each parent’s child support obligation should be. Most people simply can’t afford that sort of court battle, financially or emotionally.

Are Bonuses, Sick Days, and Stock Options Considered Marital Property in Illinois?

Published on: November 18, 2014 | Kollias, P.C.

Brad is a financial manager with Big Business USA. He earns an annual salary, and doesn’t have an employment contract. However, his employer does give him the opportunity to receive an annual bonus, based on the company’s performance in general, and Brad’s performance in particular. Whether or not Big Business USA actually pays Brad a bonus is a matter within the company’s sole discretion. If they do decide to pay him a bonus, his award for this calendar year will be paid next year, in February.

Brad is married to Angie. Except for one year in which he received no bonus at all, Brad has earned a large bonus every year that he’s been with Big Business USA. Eventually, the couple starts having marital trouble, and Angie files for divorce. They can’t agree on anything, and the case is set for trial in September. Brad has been working hard and the company has been making enormous profits, and both Brad and Angie expect Brad to get a big bonus next February. Because the divorce will be finalized in September, Angie argues that 9/12 of the bonus would have been earned during the marriage, and therefore considered “marital property.” Her argument is based upon the Illinois Marriage and Dissolution of Marriage Act, which creates a legal presumption that all property acquired by either spouse during the marriage is marital property, unless it was acquired in a way that makes it non-marital. 750 ILCS 5/503(a). A few examples of non-marital property would be property which was acquired by gift or inheritance, or property subject to a prenuptial agreement. Marital property is divided equitably among the parties in a divorce. Non-marital property is not.

Brad argues that when the bonus check arrives in February, he and Angie will already be divorced. Therefore, he claims, it is not property “acquired during the marriage,” and should not be considered marital.

Unfortunately, the statute says nothing about a situation such as the one that arose in Brad and Angie’s. Specifically, there is no mention as to how a court should classify a non-vested, discretionary bonus issued after the divorce but attributed to one party’s employment during the marriage. In 2013, the Illinois First District Appellate Court decided the issue in the case of In re Marriage of Wendt. In that case, the court ruled that because the husband’s receipt of a bonus was uncertain and not guaranteed by any employment contract, it was only an “expectancy interest” and not actual “property” acquired during the marriage. Therefore, the court decided that the bonus was not marital property, and the wife was not entitled to any of it.

In Illinois, a Noncustodial Parent May Be Entitled to Receive Child Support

Published on: November 3, 2014 | Kollias, P.C.

Yes, you read that correctly. In Illinois, under certain circumstances, a noncustodial parent may be entitled to receive child support from the custodial parent.

In a divorce or parentage case, a court may either grant joint custody of the children to both parents, or grant sole custody to one parent. The term “custody” relates to the authority to make major life decisions for the children, such as education, religion, health care, and the like. Thus, even where there is joint custody, the court must still designate which parent will be the primary residential parent, and set a visitation or parenting time schedule for the other parent to have the minor children. Even in situations where the parents essentially share time equally with the children at a nearly 50-50 split, one parent will typically be deemed the primary residential parent. The residential parent is often called the physical custodian of the children. In order to make this blog readable, we will simply refer to the primary residential parent as the custodial parent.

In the overwhelming majority of cases, the custodial parent is entitled to child support from the noncustodial parent. Child support is governed by Section 5/505 of the Illinois Marriage and Dissolution of Marriage Act, which sets forth statutory guidelines for how much child support is to be paid out of the payor’s net income. The statute sets child support based upon the number of minor children involved. For one child, the payor is to pay 20 percent of his or her net income; for two children, 28 percent; for three children, 32 percent; for four children, 40 percent; for five children, 45 percent; for six or more children, 50 percent. See 750 ILCS 5/505(a)(1).

However, a custodial parent is not always entitled to child support from the noncustodial parent. In crafting the statute, the Illinois Legislature did not specify that only noncustodial parents are responsible for paying child support (as is the case in some states). In fact, the statute gives the courts discretion to “order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child” (Emphasis added) 750 ILCS 5/505(a).

Are DuPage County Income Withholding Orders for Child Support Enforceable?

Published on: September 30, 2014 | Kollias, P.C.

Income withholding notices issued to employers are the most common way child support orders are enforced. When everything works as it should, employers dutifully obey such notices, withhold child support from the employee’s pay, and send payment off to the Illinois State Disbursement Unit (the “SDU”). The SDU then forwards the money on to the custodial parent, and keeps records in case there is ever a dispute over how much was paid and when. In places like DuPage County, Illinois, where judges place great emphasis on enforcement of child support orders, the Clerk of the Circuit Court automatically issues an income withholding notice to the non-custodial parent’s employer any time a child support order is entered in a case (provided the proper form is used).

But what happens if an employer fails to obey the income withholding notice? What happens if the employer never withholds the money for child support?

The law on point, called the Income Withholding for Support Act (the “Act”), places a duty on an employer who has been served with a notice of withholding to pay to the SDU. 750 ILCS 28/1 et seq. Further, the Act provides a severe penalty of $100 each day that a payor knowingly fails to pay ordered amounts to the State Disbursement Unit. 750 ILCS 28/35(a). As such, the Act demands strict compliance. The $100 per day penalties accumulate and run concurrently, meaning that each pay period in which the employer fails to comply is subject to a separate $100 per day penalty. For example, if an employer disobeys a withholding notice over the course of ten pay periods, the fines would accumulate at a rate of $1,000 per day. And, in case you were wondering, the penalties are to be paid to the custodial parent.

Orders of Protection in Illinois: Inappropriate for Neglect Alone

Published on: September 20, 2014 | Kollias, P.C.

In Illinois, courts are authorized to issue orders of protection under the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq. ( “the Act”). The purpose of the Act is to support victims of domestic violence and to help them avoid further abuse. The Act aims to “reduce the abuser’s access to the victim. . . so that victims are not trapped in abusive situations” (750 ILCS 60/102(4)).

An order of protection can include a broad range of remedies, including but not limited to the following:

• Prohibit harassment, interference with personal liberty, physical abuse, or stalking;
• Prohibit intimidation of a dependent;
• Require an abuser to stay away from the victim’s home, car, or workplace;
• In cases where a child is a protected party, the order can require the abuser to stay away from the child’s school and after-school care facilities; and
• Restrict or deny visitation rights;

In cases where a child has been abused, a parent may file a petition for an order of protection against the other parent on behalf of a minor child. In order to obtain an order of protection, the parent seeking the order of protection (the “petitioner”) must prove that the other parent (the “respondent”) has abused the child, and that an order of protection is the appropriate remedy to prevent further abuse.

What happens if a parent doesn’t necessarily abuse a child, but simply neglects him? Can an order of protection be obtained against a parent who simply leaves a child unsupervised? As silly as it may sound, according to the Illinois Appellate Court, the answer is clearly no, unless of course the “neglect” was actually “abuse.”
Follow that? Of course you do. If not, allow me to explain.

The Law On Maintenance (a/k/a Alimony) Is Changing in Illinois: How It Will Be Calculated and What the Changes Mean For You

Published on: August 27, 2014 | Kollias, P.C.

Senate Bill 3231 was approved this month and will take effect January 1, 2015. It amends the current divorce law in Illinois on spousal support, the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/504. This means changes are coming regarding maintenance, which is also known as spousal support (also referred to as alimony by the Internal Revenue Service).

Unlike child support, in a divorce proceeding, the judge has discretion to determine whether or not to order maintenance. In order to decide whether maintenance is appropriate, the court will weigh several factors, such as the duration of the marriage, the standard of living established during the marriage, and the income and needs of each party. The court will also look at whether one spouse forwent higher education or career opportunities to stay home, and the amount of time it will take that spouse to achieve sufficient education or job training to become financially self-sufficient.

If the court decides to order maintenance, it can do so either in accordance with guidelines or not in accordance with guidelines. The court must use specific guidelines if the combined gross income of the parties is less than $250,000 and there is no multiple family situation. Interestingly, the definition of “multiple family situation” is nowhere to be found in the new statute. Presumably, it refers to a situation where a spouse has support obligations in more than one case.

How Does Divorce Affect Social Security Benefits?

Published on: August 20, 2014 | Kollias, P.C.

Surprising as it may be, divorced people are entitled to receive benefits based upon their ex-spouse’s earning history as well as their own. Moreover, the benefit is based on the ex-spouse’s entire earnings history, not just earnings accrued during the time the couple was married.
Spousal benefits were introduced in an era when most women did not work outside the home and did not earn their own Social Security benefits. Today, women frequently earn more than their husbands, and have higher Social Security benefits as a result. However, because the spousal benefit is largely a relic of a bygone era, it is only fitting that my hypothetical example reflect that era. Consider the marriage of a couple named Mark and Angela, who were married for 30 years, and then got divorced. Mark is now 67. During the marriage, he was the breadwinner, and based upon his earnings, he has accrued Social Security retirement benefits. Angela is 66 and never worked outside the home. Her social security earnings history lists nothing but a series of zero’s over the years. Neither party has remarried.
If they had remained married, when Mark applies for Social Security benefits, the maximum amount of spousal benefits Angela could claim would be 50% of his monthly benefit – his “Primary Insurance Amount” (PIA) – once she reaches full retirement age. Now that they are divorced, she remains entitled to that same amount, provided that certain criteria are met. According to the Social Security Administration, those criteria are as follows:

Read Your Decree: Nuances Regarding a Parent’s Obligation to Pay for College in Illinois

Published on: July 29, 2014 | Kollias, P.C.

For most legal purposes, a child is considered an adult at age 18. He can vote. He can serve in the military. He can enter into a legally-enforceable contract. He can get married without the consent of his parents. And if he wants his parents to pay for his college education, his parents would be well within their rights to tell junior that he’s a grown man now, and he has to pay his own way. Provided the parents are married to each other, that is.

Under Illinois law, the Court has the authority to order parents who are either divorced or were never married to pay a portion of the cost of junior’s college education. But why should divorced or never-married parents have legal obligations that married couples don’t have? Doesn’t that seem unfair? It sure seems that way. In fact, in the case of Webb v. Sowell, the South Carolina Supreme Court held that treating unmarried parents differently from married parents is an unconstitutional violation of the Equal Protection Clause. The Pennsylvania Supreme Court thinks so, too. However, such constitutional challenges to the law in Illinois have failed.
As a result, disputes regarding how much each parent owes for junior’s college education are common in Illinois. Under 750 ILCS 5/513, either parent may file a petition for the court to determine how much each party should be contributing. In cases where the parties were divorced long before the thought of paying for college ever occupied a prominent place in either party’s mind, judgments of dissolution of marriage often contain generic language stating either that the parties “shall contribute to the cost of college in accordance with the provisions of the Illinois Marriage and Dissolution of Marriage Act,” or state that “the parties’ obligations to contribute to the cost of college are reserved.” While in either case it would seem that the court is putting off any decision on the issue until some point in the future, the fact of the matter is that there is a drastic difference in the legal meaning of “shall contribute” as opposed to “reserved.”

Does a Non-Custodial Parent on Social Security Disability Have to Pay Child Support in Illinois?

Published on: July 22, 2014 | Kollias, P.C.

Normally, a non-custodial parent’s child support obligation is based upon a percentage of his net income, depending on how many minor children there are (for purposes of this blog, I will be sexist and assume the party paying child support is the father rather than writing “his or her” and “he or she” every time). The statutory guideline child support percentages are laid out clearly in 750 ILCS 5/505. However, what happens if he becomes disabled, and collects social security disability insurance (“SSDI”)? Does he still have to pay? Can his benefits be garnished? What if he owes arrearages which arose prior to receiving SSDI?
As long as a disabled person receiving SSDI has minor children, Social Security will pay what is called a dependent disability allowance. In short, it is an extra benefit each month which is intended to provide for the dependent children. In 1993, the Illinois Supreme Court decided the case of Marriage of Henry, 156 Ill.2d 541, 542, 622 N.E.2d 803 (1993), which set forth the general rule: Payment of a social security dependent disability allowance fulfills a father’s child support obligation for those months during which the allowance was paid.

I Signed the House Over to My Wife. Under Illinois Divorce Law, Is it Still Marital Property? (part 2)

Published on: July 15, 2014 | Kollias, P.C.

In my last post, I set forth the legal framework in which Illinois courts examine whether property is marital or non-marital. In this post, I apply that analysis to a hypothetical fact pattern.

Let’s assume Greg and Sandy are married. During the marriage, they purchase a house and title it jointly. During the marriage, Greg gets himself into legal trouble, and fears that he is going to be sued for several hundred thousand dollars. He hires a lawyer to prepare a quitclaim deed, and transfers his interest in the house to Sandy. The lawyer records the deed, making Sandy’s ownership of the property public record. Fortunately, the lawsuit Greg feared never materializes. They continue living in the house together until Greg files for divorce 10 years later. In the divorce case, Sandy claims that the house is her non-marital property.

Legally, the fact that the house was purchased during the marriage sufficiently raises the presumption that it is marital property under 750 ILCS 5/503(a). The fact that the parties initially titled it jointly reinforces that presumption. If Sandra wishes to assert that the residence is non-marital, she bears the burden of presenting evidence at trial to show that it was acquired as non-marital property under 750 ILCS 5/503.