Under the Illinois Marriage and Dissolution of Marriage Act Section 5/505, each parent has an affirmative duty to provide for the financial support of his or her minor children. That obligation, as a matter of law, cannot be waived by either party and is always modifiable upon a showing of a substantial change in circumstances.
Nonetheless, if the parties agree or the court finds “appropriate circumstances” exist to deviate from the statutory formula (used to calculate child support), the obligation may effectively become non-existent. Still, the obligation is not considered “waived.” The child support order shall reflect that the trial court made a finding that “appropriate circumstances” exist to deviate from the formula or the parties agreed to the deviation, which they found fair and reasonable.
In In re Marriage of Romano, 2012 IL App 2d 091339, for example, the trial court ordered maintenance (i.e. alimony) payable to the wife but waived child support for the benefit of the minor child who was nearing emancipation. The trial court’s decision was reversed on appeal because the appellate court found that an award of all maintenance, and no child support, contravened the husband’s statutory right to modify child support. The trial court lacked the authority to order an award of all maintenance in lieu of child support.
For various reasons, including but not limited to the fact that maintenance is deductible to the payor, the parties may agree that all support shall be deemed maintenance rather than allocated partly as child support and partly maintenance but the trial court may not order that.
When determining the overall allocation of marital property, the income of the parties, the ages of the children, and a variety of other relevant factors, it may behove the parties to reach such an agreement. Your lawyer should discuss all of the options that may be available to you and benefit both parties.