The biggest battle when it comes to child support is what constitutes as income. Once a party’s income is established, the courts will usually apply Illinois guidelines. For one child, it would be 20% of the payor’s net income, for two children its 28%, for three children its 32%, etc. The courts may deviate from guidelines, either upward or downward, depending on the circumstances.
In a recent Fifth District case, In re Marriage of Fortner, 2016 IL App (5th) 150246the appellate court found that a payor’s wrongful death settlement is considered “income” for child support purposes. In that case, the settlement was for $169,725, and the court ordered a one-time payment of $15,000 as child support. This amount was clearly below guidelines, but the court felt that a deviation was appropriate given that it was a one-time payment and that fact that the payor had already spent it.
The Husband argued that wrongful death settlements are not income as they were awarded to him as part of the negligence of the Defendants and to compensate him for his pain and suffering. However, the Fifth District relied on the expanding definition of income from all sources, including any settlements.
This decision is significant for payee’s as it increases their ability to get more child support, but it is a blow to payor’s who have had to endure pain and suffering as part of the underlying lawsuit, only to find out they have to give a certain percentage to their ex-spouse as child support. It may discourage settlement, but most importantly, it only brings more grief to a person who was awarded the money specifically for their pain and suffering in the underlying negligence case.
It is also important to note that this case is in conflict with a Second District case, Villanueva v. O’Gara, 282 Ill.App.3d 147, 668 N.E.2d 589, 218 Ill.Dec. 105 (2d Dist. 1996), that held that damages for pain and suffering are not considered “income” for support purposes because they make the plaintiff whole rather than increasing the plaintiff’s wealth.
As part of the First District, it would be interesting to note in which direction the Courts would go. Either way, at least on the trial court level, you would argue the case that is most favorable to you.