What Happens in Child Support Cases When the Custodial Parents Earns More Money

MoneyMore and more, we see wives earning more than their husbands. In divorces where children are involved, this raises new issues with child support.


            As a general rule, the non-custodial parent pays child support on a percentage basis to the custodial parent in accordance with statutory guidelines set forth in 750 ILCS 5/505. However, the statute allows for a “downward deviation” when it is appropriate.


            A deviation is most frequently granted in case involving high-income earners. However, more recent Illinois case law shows that fathers, who are the non-custodial parents earning less income, may sometimes successfully argue a downward deviation.


             In Re Marriage of Berberet, 2012 IL App (4th) 110749, involved a mother who argued at the appellate level that the trial court abused its discretion in deviating downward from the guideline amount of child support set forth under section 505(a) of the Act. The appellate court found that:

Based on the record, we find that the trial court correctly followed the procedure set forth in section 505(a) of the Act for deviating from the support guidelines. The court calculated the amount of support required under the guidelines, $1,433 per month, and determined that the amount was not appropriate. In accordance with section 505(a) of the Act, the court also stated the reasons for its variance from the guidelines. As authorized under section 505(a)(2)(e) of the Act (750 ILCS 5/505(a)(2)(e) (West 2010)), the court considered the financial resources and needs of the noncustodial parent. The court found that if the guideline amount was awarded, Rebecca’ s net monthly income would exceed David’s by nearly $4,000, the difference between $7,035 per month and $3,046. As a result, the court determined that David would experience financial constraint if he was required to pay the guideline amount of support. Last the court determined that if the support guidelines were imposed David’s involvement with the children would be adversely affected: “David would be substantially unable to participate in the children’s school, athletic and social activities or to enjoy any recreational activities with the children. Such a result is not in the children’s best interests.” The court did not abuse its discretion in awarding the downward deviation in support.

            Berberet provides some relief for fathers otherwise would not be able to afford their own living expenses and child support. It reminds us statutory child support may not be the only option.


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