COMPUTING CHILD SUPPORT UNDER SOLECKI USING INCOME SHARES
In 2017, the child support statute in Illinois was modified. The statute now uses an “income shares” approach to compute the net income of both parents, as opposed to the previous formula of laying out a percentage of one parties’ income due based on how many children they have. The new formula for calculating child support obligation of each parent is laid out in 750 ILCS 5/505(a)(1.5) and involves 4 steps: (1) determine each parent’s monthly net income, (2) add the parents’ monthly net income to determine the combined income (3) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties and (4) calculate each parent’s percentage share of the basic child support obligation. This new way of computing child support combines the parent’s incomes and then separates them based on what each parent makes, as opposed to doing a separate calculation of each parent’s individual income.
In Solecki, the parties divorced prior to the new version of the statute, but when the husband filed a petition to modify his child support payments, this new law was in effect. The parties in Solecki disagreed over the amount that the husband owed in child support due to what his net income was. The husband owned his own business as well as being employed, thus having multiple income sources. Because he owned his own business, he was also entitled to business deductions, effecting his gross income computation. The husband and wife divorced prior to the 2017 statute being enacted, and in their MSA, they agreed to have an annual true-up to make sure that the husband paid all the support he owed to the wife. However, the parties disagreed over how to calculate the husband’s net income, even at the time they signed the MSA.
When the statute changed in 2017, the husband filed a petition to modify his child support payments on the theory that there had been a substantial change in circumstances. The wife believed that the husband owed her money, but the husband believed that he had paid all his financial obligations thus far. The trial court found that the husband owed the wife $7,870 in child support, using the judge’s own formula. However, the wife believed he owed her $75,919 and she appealed.
The Second District Appellate Court found that the trial judge’s computation was wrong. The Appellate Court also found that the MSA was not in compliance with the statute because the parties could not determine net income in any way except which the statute defines it as. The Appellate Court looked at what the child support statute was in January 2015, the time that the MSA was written, not the current statute. However, the MSA had contradictions in it of what “net income” meant. Using McGrath, an Illinois Supreme Court Case as precedent, the Appellate Court overruled the trail court’s decision of how to compute the husband’s net income, because “the court is not permitted to deviate from the measure of net income to which the guidelines apply in the first instance”. The Appellate Court also ruled that “since the true-up provisions were irreconcilable with the Act, the trial court should have simply struck them without conducting the true-ups”. Thus, the Appellate Court ruled that because the true-up provision in the MSA had been stricken, there was a substantial change in circumstances because the wife had lost her “safe-haven”, and that they parties have met the standards of substantial change in circumstances, thus allowing a review of child support modification.
This case leaves us with the new rule that even if parties are in agreement of what to include and exclude from gross income, it will be voided by a court if it is not in compliance with the 505(a)(3). The rules for income are all in 505(a)(3) and parties must follow the statute to compute a parties’ gross income.
What happens when a child is emancipated? Does child support payment end?
Modification and termination of child support is controlled by 750 ILCS 5/510. In 5/510(d), the statute states that “unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgement” child support will be terminated by emancipation of a child if they have reached the age of 18, or if they are still attending high school it will continue until they turn 19 or graduate high school, whichever is earlier. Thus, emancipation of a child is reason for child support to end. The statute requires that if child support is going to continue beyond emancipation, a written settlement agreement or the judgement must provide for this. In re Marriage of Schroeter & Lindsday, 2018 IL App (1st). Otherwise, emancipation is reason for child support to be revisited.
What about college expenses for a child who has been emancipated?
750 ILCS 5/513 lays out the rules regarding educational expenses for a non-minor child. If a child who is emancipated is attending college, this statute lays out how to determine the financial obligations of the parties. Any petition for educational expenses must be brought to the court before the child turns 23 unless the parties have agreed to a different age, however it may not be brought later than age 25. The court has authority to assign payment equal to the amount of in-state tuition and fees for a child attending University of Illinois at Urbana-Champaign. The court will also base living expenses and meal plan payments based on University of Illinois at Urbana-Champaign expenses. However, a child may not bring a petition against a parent, it is up to the parties themselves to decide if they will pay the child’s educational expenses once the child is emancipated. The parties may agree to this in their settlement agreement or a court may make an award pursuant to 5/513.
When parties agree about child support payment on their own, they must have followed 5/505(a)(3) to compute the parties’ income totals. The parties may include in their MSA’s about what to do regarding child support once a party is emancipated, but if they do not then 5/510(d) provides that child support is terminated once the child turns 18 or graduates high school. If a child is emancipated and the parties are paying for the child’s college expenses, 5/513 will govern. However, a child may not bring a petition for support here, it is up to the parties themselves to decide if they are going to continue to support their children once emancipated.