In Illinois, the parent paying child support cannot modify support using the other parent’s increased income as a substantial change in circumstances. While the new support law takes into account the income of both parents, there still needs to be a substantial change in circumstance to ask the court to modify the child support. It is problematic since every person who pays the support, wants the court to take a fresh look at the support obligation to include their ex’s income.
For those earning about the same about of income, or a bit more, can easily determine that their support obligation would go down if their ex’s income was now a part of the calculation. How does an obligor get the court to review it though?
It does seem unfair to watch some people modify their support obligation while others are still required to pay more than they should under the new statute. Shouldn’t the new statute be applied equally to everyone and allow everyone to pay the required amount under the statute? A lot of people are trying it, like the father in the recent Salvatore case, but they aren’t successful unless there is a change in circumstances.
Attempt to Modify Child Support In Re Marriage of Salvatore
The father in Salvatore attempted to modify his support obligation under the new statute. He was unsuccessful. He argued on appeal that there had been a substantial change in circumstances since his divorce from his ex-wife. He argued first that his income had gone down, and secondly, that his ex-wife was now making more money than she did at the time of the divorce.
The Illinois support statute reads as follows:
At all times relevant, section 801(c) of the Act has provided that “[t]his Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.” 750 ILCS 5/801(c) (West 2014); 750 ILCS 5/801(c) (West 2016). Also at all times relevant, section 510(a)(1) of the Act has provided that an order for child support may be modified “upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a)(1) (West 2014); 750 ILCS 5/510(a)(1) (West 2016).
However, Public Act 99-764 notably added the following language to section 510(a):
“The court may grant a petition for modification that seeks to apply the changes made to subsection (a) of Section 505 by this amendatory Act of the 99th General Assembly to an order entered before the effective date of this amendatory Act of the 99th General Assembly only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of this amendatory Act of the 99th General Assembly itself does not constitute a substantial change in circumstances warranting a modification.” (Emphasis added.) Pub. Act 99-764 (eff. July 1, 2017) (amending 750 ILCS 5/510(a)).
A Change in the Law Does Not Meet a Substantial Change In Circumstance
In other words, you aren’t allowed to modify your support obligation by arguing the law changed, and that is your substantial change. The substantial change in circumstance cannot be that the law changed.
In Re Marriage of Salvatore Case Background
In the Salvatore case, the parties had three children. At the time of divorce, his ex-wife was not working and Daniel agreed to pay her $8,10.00 per month, which then was 32% of his net income. Support used to be calculated by a percentage based on how many children you had, but only the obligor’s net income was used. Under the new statute, both parties’ incomes are used.
Years after the divorce, Daniel filed a petition to modify child support, arguing that his decreased income constituted a substantial change in circumstances. He further pled that the statute had changed, and under the new statute, his ex-wife’s income should now be factored into the equation. According to Daniel, his ex-wife’s gross income from her new job was approximately $45,000 per year. Daniel sought to lower his support from $8,100 a month to $3,244 using the new statute.
At the child support hearing, Daniel testified that his individual 2017 tax return showed a gross income that was significantly less than his gross income from previous years. However, his personal banking records showed he had several large sums of money deposited into his account that weren’t reflected on his tax returns.
Wife Argued Husband’s Financial Records with Fictitious
When Daniel completed his case, his ex-wife argued that his financial affidavit and tax returns were “completely fictitious” and that he was simply attempting to take advantage of the new child support guidelines in section 505 of the Act. In response, Daniel argued that there had been two substantial changes in circumstances: his decreased income and Brenda’s increased income. Over Brenda’s objection, the trial court allowed Daniel to amend his petition to conform with the proofs and add an allegation that Brenda’s increased income constituted a substantial change in circumstances. However, the new law also says that the modification shouldn’t be used as a means to lower support to the obligor.
Husband’s Financial Records “Not the Most Accurate”
The trial court began by finding that Daniel’s tax returns were “not the most accurate total of his income” and rejected his argument that they constituted a substantial change in circumstances. The Court next looked at whether the ex-wife’s new increased income could be a substantial change.
Mother’s Income Was Not a Factor in Determining Father’s Child Support Obligation
The Court said that ” the non-supporting parent’s income was not a factor in determining the supporting parent’s child support obligation.” In closing, the court ruled that Brenda’s current income could not be a basis to modify Daniel’s child support obligation.
Modification of Child Support Denied for Failure to Show a Change in Circumstance
The Court reasoned that Daniel had filed his Petition to Modify Child Support after the Public Act (the new child support statute) became effective. If Daniel could establish a substantial change in circumstance since his divorce was entered in 2015, then he would be allowed to modify his support obligation. If he established that change in circumstance, he would be allowed to use the new child support law which would include his ex-wife’s income. Everyone agreed that if he met the substantial change in circumstance requirement and were allowed to modify, his child support obligation would be reduced.
Father’s Income Did Not Establish a Substantial Change
Daniel’s problem in this case, however, was that his income (or at least his proof of the income) did not establish a substantial change. It seems clear when you read the case that the Court really thought (probably rightly so) that he wanted to modify his support obligation due to his ex making a lot more money since the date of the divorce.
Appellate Court Reviews Income as the Substantial Change in Circumstance
On appeal, the first issue raised by Daniel is whether his ex-wife’s income is relevant, as a matter of law, to establish a substantial change in circumstances. The Court looked at whether, at the time of divorce, if the parties contemplated that his ex-wife would work in the future. A review of her working history during the marriage was scrutinized and the Court found that the parties always intended that Daniel’s ex-wife would work. The Court reasoned that if you thought at the time of marriage that she would work and make more money, and then she did, there is no substantial change in circumstance.
The Court looked at the Hughes case. In Hughes, the ex-wife filed a petition to modify the ex-husband’s child support obligation, based on the ex-husband’s increased income due to the termination of his maintenance and car payments. Hughes, 322 Ill. App. 3d at 817. The trial court granted the petition and increased the ex-husband’s child support obligation, based on these changes in his ” ‘financial situation.’ ” Id. at 818. The Appellate Court reversed, however, holding in pertinent part:
“The increase in [the ex-husband’s] available income to pay child support following the termination of maintenance and car payments did not constitute a substantial change in circumstances because these events were contemplated and were expected by the court when the judgment for dissolution of marriage was entered.” Id. at 819.
Cannot Rely on an Event Contemplated When Child Support Originally Set
The events contemplated in Hughes were certain to occur, and Daniel’s ex-wife going to work and earning more income was also contemplated. The Appellate court said that Daniel cannot rely on the occurrence of an event that he contemplated when he negotiated these other contractual obligations. To rely on the occurrence of an event to establish a substantial change in circumstances that would trigger a downward modification of his child support obligation now would not be allowed. The Appellate court affirmed the trial court and said the court was correct in refusing to consider the ex-wife’s income as a basis for determining whether there was a substantial change in circumstances.
Attempts to Modify Support Obligation Because of Change in Law Not Permitted
Daniel argued that his child support obligation under the new guidelines would be less than half of his obligation based on the prior guidelines. He told the Court, that for them to ignore this much of a substantial change was inequitable. The Appellate Court disagreed. The Appellate Court stated that Daniel’s reliance on the fact that the statute changed (and now calculated both parties’ incomes instead of just one party’s) was exactly what the Public Act 99-764 stated was not allowed. The makers of the Public Act knew that obligors would attempt to modify their support obligation simply because of the change in the law, and they purposely added language to disallow it. In closing, the Appellate Court said that even if Daniel’s ex’s income could be considered, they found that Daniel’s income was not a substantial change and affirmed the trial court’s ruling to deny Daniel’s request to modify his support obligation. Salvatore v. Salvatore (In re Marriage of Salvatore), 2019 IL App (2d) 180425 (Ill. App., 2019)