Modification Generally
The entry of the divorce judgment may not be the last time you or your (former) spouse are in court for your divorce. Child support, child custody [called allocation of parental responsibilities], alimony, and other provisions are generally subject to modification or change if the situation changes after the divorce is entered. Property division, however, cannot be generally changed unless the parties agree or give the court jurisdiction to modify the property division.
I don’t like the terms of my divorce judgment. I made a bad deal. Can I get it changed?
Not just because you don’t like it. Of course, by agreement with your former spouse, virtually any change can be made, as long as the change does not adversely affect the children.
What is the basis that I would be allowed to have a divorce judgment modified by the judge?
Generally, property settlement provisions cannot be modified unless there is an agreement of the parties. For the issues of support, maintenance, and allocation of parental responsibility (read custody), generally these can be modified on a showing of a “substantial change of circumstances.” Under Illinois law, the divorce judgment–whether entered by a settlement agreement or as a result of a trial–is a final judicial act. The terms of your Illinois divorce or parentage judgment were made based on the facts existing at the time of the divorce. So, the party seeking to change the terms of the judgment must demonstrate a substantial change of circumstances since the entry of the judgment. This relates to terms such as child support modification, modification of maintenance, or modification of your parenting time within your custody judgment.
—Child Support Modification
Child support modification is far more important now that the law has very substantially changed in Illinois from the simple percentage of payor’s income to the income-shares approach in 2017. The income-shares law considers the income of both parents as well as the number of overnights for parenting time, among other things.
Can child support payments be reduced if my income has gone down?
Yes, if it’s gone substantially down. Modification of support requires a showing of a substantial change of circumstances. But the reduction in income must be bona fide and not self imposed.
What is the effect of the 2017 income-sharing law? I have a six-figure income and understand that my support obligation under the income sharing amendments would be far lower. Can I go to court and have support lowered to meet with the guideline amount?
It’s not that simple. There has to be a change in circumstances other than the 2017 change in Illinois child support law. Therefore, it is critical to wait until you a substantial change in circumstances justifies conforming to the statutory amount. This substantial change in circumstances can include either a substantial reduction in income or a substantial increase in parenting time. And 2022 legislation seeks to address complex caselaw involving foreseeability. There are other potential instances other than lowered income but these should be discussed with your lawyer in detail. See the Gitlin Law Firm’s blog regarding a 2019 McHenry County decision that addresses this issue.
Can child support be increased if the child support obligor is making substantially more money now than he was at the time of the judgment?
Yes, as long as the needs of the children have increased and the current guidelines would provide for more child support than the amount being paid. The law does not state what a substantial increase in income is. The rule of thumb of the Gitlin Law Firm is that the increase should be at least 20 to 25 percent.
I pay child support and my income remains the same as of the time of the divorce? Can I get a reduction in child support if my parenting time with the children substantially increases?
Consult with a lawyer on this topic as the answer depends on the circumstances. I have seen pro se individuals who attempt to get a reduction in child support due to somewhat increased parenting time but fail to properly present all issues that might relate to what could be a substantial change in circumstances.
How can I find out whether the child support obligor is making substantially more money?
First, you must file a petition in court alleging you are informed and believe that the child support obligor is making substantially more money now. That is, unless there were provisions for mandatory disclosure within the settlement agreement.
Once you are in court, you are entitled to discover through a demand for tax returns, pay check stubs, or subpoenaing the employer, how much he earns. In addition, there is the required the submission of a financial affidavit form following or with the filing of petition for modification of support.
—Maintenance Modification
Do the same rules (substantial increase or decrease in income) apply to maintenance (alimony)?
Yes, but the law allows a marital settlement agreement to state that maintenance is non-modifiable or only modifiable if certain conditions exist. You should examine your marital settlement agreement to see if the maintenance payments are specifically stated to be non-modifiable.
Can maintenance be increased merely on the basis that the payor is making more money now?
It depends. In theory, the original maintenance award was made to allow the receiving spouse to enjoy the same economic lifestyle after the divorce as she had during the marriage. The recipient of maintenance is not entitled to a maintenance increase to live beyond the lifestyle merely because her former husband may be enjoying a higher lifestyle. Yet there may be circumstances in which maintenance can be increased because often the original amount was not sufficient to allow the spouse to live at or near the lifestyle established during the marriage. On all of these issues, advice from an experienced matrimonial lawyer is essential.
What’s the Difference between Modification and Review of Maintenance?
A modification requires a substantial change in circumstances. A review of maintenance results from a review that is required and provided within your original divorce decree. A maintenance review case involves two sets of statutory factors: those in Section 510(a-5) and in Section 504(a). Consult with a lawyer if you are seeking or facing a maintenance review case.
I have a maintenance award from 2014 and there has been a substantial reduction in my income? Will the current maintenance guidelines apply?
Perhaps. You need to consult with a lawyer. Gitlin on Divorce: A Guide to Illinois Family Law addresses this issue in detail. The answer depends on where you live and how the issue is framed.
When can maintenance can be terminated?
It depends in part on the language of a marital settlement agreement. See two separate Q&As:
- Gitlin Law Firm’s Q&A regarding Termination of Maintenance Generally
- Gitlin Law Firm’s article regarding Termination of Maintenance due to Cohabitation.
—Modification of Custody / Visitation now known as Allocation of Parental Responsibilities
In the original joint parenting agreement, I was awarded liberal parenting time but my former wife was awarded primary residential custody. If I can prove that it would now be in the best interest of my children for the judge to allocate parenting time primarily to me, will the judge do so?
No, not based on only a showing of what is in the best interest of the child. The best interest of the child is the standard by which the court awards awarded the original grant of custody — now known as the allocation of parental responsibility / parenting time.
For a modification (transfer) of what you refer to as “custody,” as in child support modification, you must generally prove two things:
- A change occurred in the circumstances of the child or either parent.
- Modification is necessary to serve the best interests of the child.
I heard it was more difficult to modify “custody” within the first two years following the divorce? What are the standards?
The first issue is when was the last “order allocating parenting responsibilities.” Such an order includes a joint parenting agreement an agreed parenting plan. One can now modify parenting time within two years including seeking to switch primary residential care of the children far easier than under earlier law. One still needs to meet the standards above: change in circumstances and modification is necessary to serve the best interest of the children. But to modify parental responsibilities [decision making of the children] there is a higher standard. You must submit an affidavit or affidavits. These affidavits must provides the court reason to believe that the child may be seriously endangered.
We have “joint custody,” with the mother being the residential parent/primary custodian. Doesn’t the award of joint custody give the husband a leg up in gaining residential custody?
No. The joint custody does not give the father a significant advantage. Yet, there is a different answer if under the joint parenting agreement (or parenting plan), there were an actual arrangement under which the child was receiving care–without parental objection–for six months before the filing of the petition for modification.
