Salvatore and Public Act 102-823: Foreseeability.
Public Act 102-823 has done away with the foreseeability / contemplated events relatively long line of case law. Accordingly, it is critical for lawyers to understand the caselaw that had addressed whether a substantial change in circumstances can be based upon events that were reasonably foreseeable at the time of the underlying order (usually the MSA). A body of caselaw had developed that where certain circumstances are reasonably foreseeable, they cannot be the basis of a petition for modication. Under the new law, one can petition for modification even where the change in circumstances is foreseeable so long as those specific circumstances are not expressly written into the MSA or the underlying order.
Consider then, the 2019 In re Marriage of Salvatore decision that was one of those that led to this dramatic change in Illinois’ law. This case along with several others no longer is good law. Those cases addressing contemplation in light of Public Act 102-823 that are now bad law are:
- In re Marriage of Hughes, 322 Ill. App. 3d 815 (2d Dist. 2001) (mother’s petition to increase child support once time-certain maintenance ended);
- Bernay v. Bernay, 2017 IL App (2d) 160583 (contemplation of potential retirement for the purpose of maintenance contemplated);
- Salvatore, 2019 IL App (2d) 180425; (mother’s income deemed contemplated based upon relatively minor language in MSA and JPA;
- In re Marriage of Connelly, 2020 IL App (3d) 180193 (unusual case involving whether the father/obligor’s increase in his income can constitute substantial change in circumstances given the true-up provisions involving income beyond base and accordingly increase contemplted);
- In re Marriage of Durdov, 2021 IL App (1st) 191811 (Appellate court emphasized that the obligor’s income increase outpaced the recipient’s increase in income. The opinion begins to back away from Salvatore regarding general work-related provisions for the wife. Nevertheless, the opinion held in language that no longer is good law that the schedule of imputed income meant that the potential for increase was contemplated / foreseen at the time of the time of the Judgment);
Rarely has Illinois law changed as dramatically as it has in the arena of child support (in 2017) and of maintenance (in 2015). Child support payor’s are seeking vastly reduced child support awards. Consider the following chart that simplifies the types of child support modifications. Keep in mind that our income-sharing law went into effect in July 2017 when reviewing the key cases involving what constitutes a substantial change.
| Substantial Change in Circumstance | |||
| Payor | Recipient | Result Following Statute / Case Law | |
| Income | Increase | No Change | Denial |
| Income | Decrease | No Change | Allowed |
| Income | No Change | Increase in Potential Income Anticipated Circumstance / Agreement Incorporated into Order: Occurrence of specified act not considered substantial change. | Denied. Salvatore, Hughes and Lehr. See: Book at Sec. 17-1(3).
But see Impact of Pub. Act 102-823 |
| Income | No Change | Increase in income | Allowed |
| Parenting Time:
Had been under 40% |
Increase to Over 40% | Modification not likely* (No specific case law, but see Demattia and Sobieski) Book: 10-3[i][1] and [2]. “Shared Physical Care and Support.” | |
| Parenting Time > 40% < 50 | Increase to 50% or greater | Modification likely | |
| Note: Increase or decrease must be SUBSTANTIAL and material. See 17-1(a) for definition of substantial change per case law. See, e.g., Plotz for incremental versus substantial changes. | * Review modification pre-post guidelines of child support (original guidelines). | ||
In the 2nd District McHenry County case of Marriage of Salvatore, the former husband argued that if he were allowed to modify his child support obligation, it would be reduced by less than half applying the current guidelines under the income sharing amendments. So, the case addressed whether the former wife’s prospective employment had been anticipated as reflected in the parties’ marital settlement and joint parenting agreement.
This topic is addressed in Gitlin on Divorce: A Guide to Illinois Family Law: § 17-1[b][3] “Changes Anticipated by Judgment or Marital Settlement Agreement” including the Hughes decision that is addressed at some length in Salvatore. The 2022 update to Gitlin on Divorce: A Guide to Illinois Family Law includes the recent 2021 decisions in Yabush, 2021 IL App (1st) 201136; and Durdov, 2021 IL App (1st) 191811, ¶ 4, that are no longer good law.
The income sharing amendments provide:
“The court may grant a petition for modification that seeks to apply the changes made to subsection (a) of Section 505 by Public Act 99-764 to an order entered before the effective date of Public Act 99-764 only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of Public Act 99-764 itself does not constitute a substantial change in circumstances warranting a modification.”
The overall problem that cases like this address is what to do with the known and historical interplay between child support and maintenance. In medium to high-income cases involving shorter to medium term marriages, historically maintenance has not been generous to the recipient. Child support awards in higher income cases drop dramatically under income shares. Yet maintenance awards were made with the knowledge and understanding of the overall impact of the child support obligation. In many cases, drastically reducing child support that may be occasioned by a substantial but relatively small reduction in income, may have a devastating impact on the family unit. In such cases, the court should apply the new child support guidelines but deviate upward from the child support guidelines given the needs of the primary residential parent and the children.
It is urged that a misreading of the overall impact of Salvatore led to Public Act 102-823.
The New Law.
Nevertheless, the legislature has spoken. Our new law that overrides the foreseeability caselaw provides:
(750 ILCS 5/510) (from Ch. 40, par. 510) Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.
(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. An order for child support may be modified as follows:
(1) upon a showing of a substantial change in circumstances. Contemplation or foreseeability of future events shall not be considered a factor or used as a defense in determining whether a substantial change in circumstances is shown, unless the future event is expressly specified in the court’s order or the agreement of the parties incorporated into a court order. The parties may expressly specify in the agreement incorporated into a court order or the court may expressly specify in the order that the occurrence of a specific event will not constitute a substantial change in circumstances to warrant modification of the order; and ***. [1]
There are mirror provisions involving contemplation or foreseeability and maintenance modification at Section 510(a-5) as amended.
[1] Pub. Act 102-823, eff 5/23/22.
Click here for an in depth discussion of the Salvatore
