Changes in Circumstance: Child Support Modification Following Custodial Parent’s New Job Under The 2017 Amendments to the Illinois Marriage and Dissolution of Marriage Act

Following the 2017 Amendments to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), a custodial parent's income must be factored in when setting how much child support the noncustodial parent will be required to pay. Pub. Act 100-15 (eff. July 1, 2017) (adding 750 ILCS 5/505(a)(1.5)). Parents are left wondering, now more than ever, what happens when parents' income changes after child support has been set?

A parent's child support obligation may not be modified under Illinois law unless there has been a "substantial change in circumstances." 750 ILCS 5/510(a)(1) (West 2016). So the question of whether an order can be modified always rests on whether some change meets this standard.

Under prior case law, before the 2017 Amendments, a party's increased income does not constitute a "substantial change in circumstances" when the increase is based on events "contemplated and expected by" the trial court at the time the Marital Settlement Agreement and Judgment for Dissolution of Marriage are entered. In re Marriage of Hughes, 751 N.E.3d 23 (2001); In re Marriage of Mulry, 732 N.E.2d 667 (2000). The Illinois Appellate Court, Second District, recently grappled with the effect of the 2017 Amendments, requiring now that both parties' income be factored into the determination of child support, on this longstanding rule. See In re Marriage of Salvatore 2019 IL App (2d) 180425. Specifically, the court looked at the effect of a custodial parent obtaining employment after a child support order was entered while she was unemployed. See id.

In re Marriage of Salvatore involves parents of three children who divorced in 2015, before the Amendments were passed. Id. ¶ 3. The father was ordered to pay the statutorily required amount of child support to the mother, who was not working at the time but had worked some during the marriage. Id. ¶ 8. In 2017, the father filed a petition in court to decrease his child support obligation alleging that the mother's new employment constituted a "substantial change in circumstances" required to change child support after the order was already in place. Id. ¶ 10.

The Appellate Court upheld the existing case law as applied under the 2017 Amendments in In re Marriage of Salvatore, holding that a custodial parent's gaining of employment is not a basis to decrease the noncustodial parent's child support obligation if the potential of the custodial parent to later gain employment was "contemplated" at the time child support is set. Id. ¶¶ 24, 33.

The Appellate Court emphasized in its decision that the mother had worked during the marriage, and just happened to be at a period of unemployment at the time of the dissolution. Id. ¶ 25. The court further stated that it was not explicitly contemplated that the mother would be unemployed the entire time of the support (until emancipation or graduation from high school, whichever first). Id. ¶¶ 5, 25. It was also never mentioned in the settlement agreement that the mother's future employment would affirmatively trigger a modification. Id. ¶ 26.

The court highlighted that it is important to look at the settlement agreement as a whole to understand the intent of the parties at the time of agreement and conclude whether a decrease in child support was "contemplated". Id. ¶¶ 27, 28. Mention of the mother eventually gaining employment was made in other sections of the settlement agreement, such as the section regarding health insurance stating the child could have health insurance through "either party's employer" and costs would be divided "in relation to the parties' net annual incomes." Id. ¶ 26. However, the court recognized that if this were the only provision contemplating Mother's future employment, their decision may not be the same. Id. ¶ Here, the mother's future employment was also mentioned in the agreement stating that the parties should notify each other of "their places of employment" and inform each other of "work related cancellations." Id. ¶at 6.

The court noted that even if the prospective employment was not contemplated at the time of dissolution, it seemed like the father's argument was in essence stating that because of the change in the law, he should have his child support recalculated based on both party's incomes. Id. The court stressed that the passing of the Amendments to the IMDMA does not in itself constitute a substantial change in circumstances warranting a modification, as specifically stated in Pub. Act 99-764, to safeguard against maneuvers like this one. Id. ¶ 33; Pub. Act. 99-764 (eff. July 1, 2017) (amending 750 ILCS 5/510(a)). The court drives home its point that a parent's child support obligation is firmly set at the time the agreement is entered in court and is not to be changed every time there is any sort of change in circumstances on the part of either party. See id. ¶ 33.

It is important to note that another Illinois court does not necessarily have to follow the rule from this case when presented with a different set of facts. The facts of this case in particular weighed heavily on this court's decision - that the mother was gainfully employed at different points in the marriage, that the mother's new salary was so insignificant compared to the father's existing salary, and that the mother's future employment was mentioned so many time in other areas of the settlement agreement. See id. However, this case serves as a good example of how an Illinois court wrestled with the issue of factoring in a custodial parent's income to an existing child support order when the parent was not employed at the time of the order using the new provisions of the IMDMA.