In Illinois the amount to be paid for child support is prescribed by statute. Until July 1, 2017, in Illinois child support is based on a percentage of net income depending on the number of children. Child support can be set at a lower or higher amount (known as a deviation) and often the court may require the parent to contribute to some of the children’s health care, child care, education and extracurricular expenses.
In an Illinois divorce or paternity suit, is the amount to be paid for child support predictable?
Not exactly. The law regarding child support is in a great deal of flux. The Illinois legislature had prescribed the following child support guidelines that are effective through to July 1, 2017:
Number of Children and Percent of Supporting Party’s Net Income
- 1 child: 20%
- 2 children: 28%
- 3 children: 32%
- 4 children: 40%
- 5 children: 45%
- 6 children or more: 50%
While the judge has the discretion to go below or above the guidelines, it takes unique circumstances to cause a variance.
Is “net income” the same as take home pay?
No. Through to July 1, 2017, Illinois law defines net income. It is gross income “from all sources” minus certain deductions:
- Federal and State tax
- Social Security
- Mandatory Retirement Contributions
- Union Dues
- Health Insurance Premiums;
- Court ordered life insurance premiums to secure payment of child support;
- Former court ordered child support or maintenance obligations actually paid;
- Repayment of business debts.
Is income from overtime, second jobs, bonuses, commissions, etc. considered “income?”
Yes. The Illinois statute says that income from all sources is considered for child support. Thus, rental property income, stock dividend income, interest income, etc., are considered income for the purpose of calculating child support. The 2017 law provides:
As used in this Section, “gross income” means the total of all income from all sources, except “gross income” does not include:
(i) benefits received by the parent from means‑tested public assistance programs, including, but not limited to, Temporary Assistance to Needy Families, Supplemental Security Income, and the Supplemental Nutrition Assistance Program or
(ii) benefits and income received by the parent for other children in the household, including, but not limited to, child support, survivor benefits, and foster care payments.
I am self employed and have overhead expenses. Can I deduct from my gross income all of my overhead expenses?
No, current Illinois law in this area is not solid, and the present law is not totally sensible. The child support statute makes “expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income including … student loans” deductible.”
It seems that a person who is in business for himself and paying child support would be well served to become incorporated (subchapter S) so the corporation can pay him a wage, and it would be the corporation paying the overhead for the business and thus overhead should be deductible. Illinois law is more complicated in cases involving a self-employed individual where the business is not incorporated (or where the business and personal affairs are so mixed that it is difficult to tell one from the other).
The July 1, 2016 Illinois child support law will provide:
Business income. For purposes of calculating child support, net business income from the operation of a corporations, partnerships, other flow‑through business entities, and self‑employment. The court shall apply the following:
(A) The accelerated component of depreciation and any business expenses determined either judicially or administratively to be inappropriate or excessive shall be excluded from the total of ordinary and necessary business expenses to be deducted in the determination of net business income from gross business income.
(B) Any item of reimbursement or in‑kind payment received by a parent from the business, including, but not limited to, a company car, free housing or a housing allowance, or reimbursed meals, shall be counted as income if not otherwise included in the recipient’s gross income, if the item is significant in amount and reduces personal expenses.
Can the Illinois court order less than the guideline amount?
I have a high income and one child. Paying the guideline percentage of my net income for child support would produce child support that is way beyond a child’s needs. Can the court order less than guideline child support?
Yes. A child support obligor who is in a very high income bracket may not be required to pay the statutory percentage of child support. The 2017 law will provide:
Income in excess of table. A court may use discretion to determine child support if the combined adjusted gross income exceeds the uppermost levels of the schedule of basic child support obligations, except that the presumptive basic child support obligation shall not be less than it would be based on the highest level of adjusted gross income set forth in the schedule of basic child support obligations.
Does the issue of child support vary from county to county and from judge to judge?
I regularly speak at the Martin Luther King Day seminar. Several of those seminars have had judge’s panels with judges from McHenry County, Lake County, Kane County, DuPage County and Cook. These judges varied substantially in certain areas including their rules of thumb for when they will begin to deviate from the child support guidelines in high income cases as well as for what amount of parenting time may be appropriate for a deviation from the guidelines.
In addition to child support, can the child support obligor be required to pay other expenses of the children?
Yes. It is customary for the noncustodial parent to be required to pay half of the custodian’s child care expenses during the time the custodian is employed, and for the non-custodial parent to obtain health insurance coverage (pay the premiums) for the children. The July 1, 2017 Illinois law provides:
Child care expenses. The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable child care expenses of the child. The child care expenses shall be made payable directly to a party or directly to the child care provider at the time of services.
Does child support stop at age 18 of a child?
Not necessarily. The law provides that support generally terminates at age 18 or of a child is still attending high school up to age 19. It is important to consult with a lawyer when child support is to terminate.
If my income fluctuates, will my child support be based on an average of past income?
Child support is often based on current income (year-to-date earnings) projected to year end when an individual receives a steady pay-check but the amount has risen in the last year. The income tax returns for the last few years will often demonstrate whether or not there are bonuses or other variable income.
If, however, the child support obligor’s income fluctuates significantly from year to year, there are two approaches:
- One approach sets support at a base amount and a percentage in addition to this base amount in order to account for the fluctuating income;
- The other approach is income averaging. Income averaging is more often used when there is the possibility of income manipulation and accordingly support is set at an amount certain based upon the true recent historical income. From case law it appears that three years of income averaging is often used but periods beyond this time frame such as six years is too long.
Must child support be payroll deducted?
Child support must be withheld from the obligor’s employment income and paid through the State Disbursement Unit (SDU) if the recipient is receiving public aid, or the support payments are made through income withholding. There is an exception in cases where there is a signed written agreement providing “an alternative arrangement, approved and entered into the record by the court, which ensures payment of support.”