When a divorce is finalized, the court issues a judgment dissolving the parties’ marriage. When the parties resolve their divorce on agreement terms instead of a trial, the judgment consists of the settlement details, which are contained in a document called a Marital Settlement Agreement, which settles the financial concerns, and the Allocation Judgment, which resolves the parenting and child custody related concerns. Both parties must abide by the agreements when a divorce ends. But things often change post-divorce, and people may obtain new jobs or move. So, sooner or later, the Allocation Judgment or the support terms within the Judgment for the Dissolution of Marriage may need to be modified.
Modifications Due to a Substantial Change in Circumstances
Specifically, courts allow modification of child support, and sometimes maintenance, in various situations, either with a periodically reviewable maintenance award or if there is a substantial change in circumstances justifying modification of child support. But how much change is a “substantial” change in circumstances? In Illinois, a substantial change in circumstances varies depending on the requested change. If a party requests a change in maintenance, formally known as alimony, and if the terms of the court order or judgment indicate that the maintenance is in fact modifiable, a layoff might be a substantial change. However, a change in employment where someone earns the same income as they did at their last job may not be a substantial change in circumstances for purposes of modification of support because their income is still the same.
Substantial Changes in Circumstance and Spousal Maintenance
In maintenance cases, maintenance is modifiable depending upon the language in the Judgment. As an example, changes in income often are substantial changes in circumstances. Not all reductions in income can modify maintenance. Courts might modify the award if a dramatic decrease to the payor’s income occurred in good faith. The circumstances that can modify maintenance, generally, involuntary reductions, such as a layoff or disability, or an otherwise good faith change. Do not expect modifications to be allowed if you choose to quit your job to lower your income.
It is not only the paying party’s income that can be used to modify maintenance. If the receiving party receives an increase in income, such as a significant promotion or a new career/education prospect, then the support award could potentially decrease as the receiving party’s income has increased, lowering the need for the maintenance award.
While financial status is also a contributing factor to the modification of maintenance, a substantial change in circumstances could also apply in other situations. An example of a non-financial change in circumstances is when the receiving party gets remarried, otherwise cohabitates, or resides with another on a continuing, conjugal basis. In that situation, the paying party can seek termination based on the new marriage or relationship.
Substantial Changes in Circumstance and Child Support
Child support aims to keep the children in a similar financial circumstance as they would have been if their parents were still residing together. As such, child support is seen not as the right of the parent, but as the right of the child that is being supported. This is why certain things are considered in a child support modification matter that might not be considered in maintenance modification matters.
For example, suppose the paying parent had a significant raise or promotion. In that case, the child should also benefit from that raise, and the parent receiving child support can request an increase in the payment. However, like maintenance, child support can also be lowered by decreases in the paying parent’s income or if receiving parent’s income increases.
Also, child support can be modified by changes in the situation. Part of the way that child support is calculated is by the number of overnights each parent has, as overnights typically determine who will provide the primary amount of day-to-day care for the child. If the child’s residence changes, such as if they move in with the payor parent, then child support calculations will also change. Child support may also change if the needs of the child change. For example, if the child were to become disabled, child support might change because the child now has increased medical needs. If that is the case, then the parents may need to increase the amount of child support due to the increased needs.
Substantial Changes in Circumstance and Parenting Time or Allocation of Parental Responsibilities
The Allocation Judgment can also be modified if there is a substantial change in circumstances since the entry of the judgment requires the judgment to be modified in order to serve the best interests of the minor child. However, unlike maintenance and child support, the changes that are considered are not financial in nature.
For parenting time, the change could be that the parties started to change the parenting time on their own, and are now seeking to codify it in writing. It could also be that one party is moving and wants to modify because they now live closer to each other.
Courts tend not to modify matters involving parental responsibilities absent a serious situation. Still, in situations where abuse occurs, or if one parent suffers from something that prevents them from being able to care for the child’s needs, then the courts might see that as a substantial change in circumstances for the purposes of modification for both the parenting time and the responsibilities. Additionally, as children get older and are able to express their preferences, that could impact the court’s decision to modify allocation of parental responsibilities. Finally, the ability of the parties to co-parent and make decisions effectively for the minor child would be considered. For example, if two people have joint decision-making for education, but they have been litigating the issue numerous times because they cannot agree and mediation is not successful, then the sole allocation of parental responsibilities for one parent may be more appropriate than joint.
When Is Something Not Modifiable?
Not everything in a divorce judgment is modifiable. For example, property awards are generally not modifiable. If one party is awarded the car, the other party cannot petition the court to modify the judgment and request it back. Another thing that cannot be modified is the waiver of maintenance or spousal support in a judgment. If a party waives spousal support or maintenance, formerly known as alimony, they cannot return to court to ask for it later unless the judgment specifically permits it.
Also, anticipated changes are not substantial changes in circumstances. For example, suppose one party receives bonuses through their employer and the parties have excluded bonuses in their child support calculation. That party cannot later come back into court to modify child support because they now want to include the party’s bonuses in the calculation. Assuming it was left out on purpose and not by error, the court may not consider this a substantial change in circumstances because the bonuses were known and contemplated and being received when the initial support calculation was entered.
Changes in maintenance or child support law is also not considered substantial changes in circumstances and cannot be used to modify an award.
Schedule Your Divorce Consultation
Schedule your consultation to see how our legal team and skilled family law attorneys can assist you with your family law needs, including modifications based on a substantial change in circumstances. Call us at 312-715-0870 or visit our website at www.illinoislawforyou.com for more information.