A man has two children and paying child support. Later, the man has two children with a new woman whom he is living with. Can these additional children he is now supporting reduce his child support payments?
In Illinois, in order for the court to modify child support payments, a substantial change in circumstances must be shown. 750 ILCS 5/510(a)(1). The burden of proof lies on the party trying to change the payments. In re Marriage of Rushing, 127 N.E.3d 769, 776 (Ill.App. 5 Dist. 2018). Courts are afforded wide discretion in determining whether the change in circumstance is substantial. In re Marriage of Connelly, 145 N.E.3d 724, 729 (Ill.App 3 Dist. 2020). Not all changes will be substantial and thus they will not always result in modification. Id. at 730. A substantial change in circumstances often looks at the child’s needs and at the obligator parent’s ability to pay and looks to see if either has substantially changed since the latest entry of support orders. Id.
In the present situation, there is no current case law which the court must follow. However if the parties, prior to this agreement, had discussed what would happen if the father had children with a new party, then this could bar the change because a change in circumstance should not be found when it was contemplated by the parties prior to entering an agreement. In re Marriage of Salvatore, 124 N.E.3d 1136, 1143 (Ill.App 2 Dist. 2019). Courts have applied this principal to situations where the situation was written into a martial settlement agreement, as well as where trial courts have contemplated the situation. Id.
Having more children would make the father have new financial obligations. There is much case law regarding change of parental employment and salary and whether that effects the child support payment. Generally, a small increase in income does not constitute either parent’s obligation of child support. In re Marriage of Connelly, 145 N.E.3d 724, 730 (Ill.App 3 Dist. 2020). As children get older, they become more expensive, and the additional costs also do not warrant a change in child support. Id. Even when courts have found good-faith retirement, and thus a loss of income, they have still found that it did not warrant a situation where change was substantial, and thus retirement did not change child support payments owed. In re Marriage of Verhines & Hickey, 129 N.E.3d 181 (Ill. App. 2 Dist. 2018).
Here, the burden is on the father to show that his financial obligation has changed substantially to allow the court to modify his current child support payments. The court would look at his current wife or mother of his new children to compute this likely. In re Marriage of Rushing, the Court found that when computing the ex-husband father’s child support payments, it was correct to look at the father’s new wife’s income and to compute new payments owed using both the ex-husband and his new wife’s financial resources. In re Marriage of Rushing, 127 N.E.3d 769, 778 (Ill.App. 5 Dist. 2018). Thus, the decision of a court would likely consider all circumstances including the financial situation of the father and the new children/ their mother. If the father was married to the new mother and they both had an income, then his payments would less likely change because of their financial resources together.
The question at issue is up to the court and it has a wide discretion in deciding if the present situation is a “substantial change” warranting the child support payment to be lessened. As a matter of policy, the court should be concerned with all the children being taken care of, and thus the financial situation of the father, his new children, their mother, and the father’s previous children and their mother will be what the court looks at in its decision.