Consider the following scenario: A couple divorced several years ago. Pursuant to their Judgment, mother has residential custody of the parties’ two children and father pays mother child support. However, one day, father is laid off and struggles to pay his support obligation. Out of the kindness of her heart, mother agrees to let father pay a reduced amount of child support while father is laid off. Pursuant to their agreement, father pays a reduced amount for the six months he is laid off. Once he begins working again, father raises his child support obligation back to the original amount. From that time forward, father pays child support to mother as ordered in their Judgment. For a long time, it appears mother and father agreed to the temporary reduction in child support and it is not discussed. Then, suddenly, two years later, mother sues father for back child support, plus interest, and wins.
Unfortunately, this is a very common story in family law cases. Although this scenario seems unfair, it comports with the law in Illinois. Section 502 of the Illinois Marriage and Dissolution of Marriage Act provides that parties to a dissolution proceeding may enter into written or oral agreements with respect to their property, finances, and their children. The general rule is that these terms are binding on the parties and the Court as long as the agreement is not unconscionable, or, in other words, is so unfair it “shocks the conscience.” However, Section 502 also provides a very important exception to the general rule: agreed upon terms with respect to the parties’ children, such as custody, visitation, and child support, are not binding on the Court. This means that, even if mother and father agreed to reduce father’s child support obligation in the above scenario, the Court did not have to accept their agreement and can find that father failed to pay his child support obligation. The reasoning behind this exception to the general rule is that, sometimes the parties’ agreement can adversely affect their children. As a result, the Court must review the agreement, determine if it is in the children’s best interests, and approve the agreement before it becomes binding. Unless the Court reviews and approves the agreement, it will not be binding on the parties.
The issue arises when parties make informal agreements with respect to their children without seeking the Court’s approval. If one party happens to change their mind, they can ask the Court to enforce the original Judgment even if the evidence shows they clearly agreed to this arrangement. In the scenario above, father could have easily petitioned the Court to lower his child support obligation due to the fact that he had been laid off. The Court would have likely allowed him to temporarily reduce his support obligation because he was not generating income at that time. If he had asked the Court for permission to lower his child support, then mother would not have been able to sue him two years later. The moral of the story is, if you and your ex-spouse are agreeing to modify your Judgment, do not do it informally. You can protect yourself by asking the Court to change your Judgment to conform to your current agreement.