Salvatore and Public Act 102-823: Foreseeability.
The 2019 In re Marriage of Salvatore decision has gained considerable traction among divorce lawyers. A misreading of this case led to Public Act 102-823, discussed below.
Rarely has Illinois law changed as dramatically as it has in the child support arena. 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 two new critical cases including the 2021 decisions in Yabush, 2021 IL App (1st) 201136; and Durdov, 2021 IL App (1st) 191811, ¶ 4.
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. It 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]
[1] Pub. Act 102-823, eff 5/23/22.
Click here for an in depth discussion of the Salvatore
