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 judgment 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 it was entered by a settlement agreement or as a result of a trial, is a final judicial act. Under Illinois in the areas of child support modification, modification of maintenance and modification of a parental allocation judgment, the law considers the fact that the judge made the determinations in the divorce judgment based on the facts in existence at the time the judgment was entered, so the party seeking to change the terms of the judgment must show that there has been a substantial change of circumstances since the entry of the judgment.
Child support modification is far more important now that the law has very substantially changed in Illinois from the simple percentage of income to income shares legislation in 2017.
Can child support payments be reduced if my income has gone down?
Yes. Modification of child support requires a showing of a substantial change of circumstances. But the reduction in income must be bona fide and cannot be 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 substantially 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 there is indeed a substantial change in circumstances that justifies conforming to the statutory amount. There are other potential instances other than lowered income but these should be discussed with your lawyer in detail.
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 also increased and the guidelines would provide for more child support than the amount that is currently being paid. The law does not state what a substantial increase in income is. The rule of safe harbor of The Gitlin Law Firm is that the increase should be at least 20%.
How can I find out whether the child support obligor is making substantially more money?
Unless there were automatic disclosure provisions in the underlying order or judgment (usually marital settlement agreement), 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 generally required the submission of a financial affidavit form following the filing of petition for modification of support.
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 in order to allow the receiving spouse to enjoy the same economic lifestyle after the divorce as she had during the marriage. She is not entitled to a maintenance increase to live beyond that level merely because her former husband is now 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.
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.
But for a modification (transfer) of what you refer to as “custody,” as in child support modification, you must first prove a change occurred in the circumstances of the child or either parent and that a modification is necessary to serve the best interests of the child.
In addition, during the first two years after the joint parenting agreement was entered, to modify parental responsibilities you must establish based on affidavits that there is reason to believe that the “child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” This is difficult to establish. But there can be modification of parenting time within two years without meeting that hurdle (the so called serious-endangerment standard).
We have “joint custody,” with the mother being the residential parent/primary custodian. Doesn’t the joint custody give the husband a leg up in gaining residential custody?
No. The joint custody does not give the father a significant advantage. On the other hand, there would be a different answer if under that 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.