How is Child Support Affected by Maintenance?

            If an Illinois circuit court finds that an award of both maintenance and child support is appropriate in a proceeding for dissolution of marriage, the court will first determine the amount and duration of the maintenance awarded. The court will use the parties’ net incomes to determine the amount of maintenance, however, the statute stipulates that net income does not include the maintenance payments in the pending proceedings. 750 ILCS § 5/504(b-3.5). Once maintenance has been determined, the court will then calculate the amount of child support that should be awarded.

            In awarding child support, the court may require either one or both parents who owe a duty of support to a child of the marriage “to pay an amount reasonable and necessary for support.” 750 ILCS § 5/505(a). The duty of support owed to a child “includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child.” Id. The statute defines “child” to include “any child under age 18 and any child age 19 or younger who is still attending high school.” Id. In determining child support, a circuit court must first calculate each party's basic child support obligation under the statutory guidelines. See 750 ILCS 5/505(a)(1.5). The courts shall “determine each parent's monthly net income; add the parents' monthly net incomes together to determine the combined monthly net income of the parents; 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 calculate each parent's percentage share of the basic child support obligation.” Id. While the support is calculated from each parent, “the receiving parent's share is not payable to the other parent” and there is a presumption that the support is to be spent directly on the child. Id.

            Section 5/505 of the Illinois Marriage and Dissolution of Marriage Act defines “net income.” 750 ILCS 5/505(a)(3)(B). The statute states “net income” means “gross income minus either the standardized tax amount calculated pursuant to subparagraph (C) of this paragraph (3) or the individualized tax amount calculated pursuant to subparagraph (D) of this paragraph (3), and minus any adjustments pursuant to subparagraph (F) of this paragraph (3). The standardized tax amount shall be used unless the requirements for an individualized tax amount set forth in subparagraph (E) of this paragraph (3) are met.” Id. Moreover, the statute provides that “net income” includes “maintenance not includable in the gross taxable income of the payee for federal income tax purposes under a court order in the pending proceedings or any other proceedings and shall be included in the payee's net income for purposes of calculating the parent's child support obligation.” Id.

The statute creates a rebuttable presumption that the amount of child support calculated under the guidelines “is the correct amount of child support.” 750 ILCS 5/505(a)(3.3). However, the circuit court may deviate from the provided guidelines to avoid “inequitable, unjust, or inappropriate” results. 750 ILCS 5/505(a)(3.4). The deviation must “be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation.” 750 ILCS 5/505(a)(3.4). There are several factors the court may consider in deciding whether to deviate from the guidelines, including “extraordinary medical expenditures necessary to preserve the life or health of a party or a child of either or both of the parties; additional expenses incurred for a child subject to the child support order who has special medical, physical, or developmental needs; and any other factor the court determines should be applied upon a finding that the application of the child support guidelines would be inappropriate, after considering the best interest of the child.” Id. Other factors include “the financial resources and needs” of the child and parents, “the standard of living the child would have enjoyed had the marriage…not been dissolved,” and “the physical and emotional condition of the child and his or her educational needs.” 750 ILCS 5/505(a)(2). The party that seeks to deviate from the guidelines has the burden of proving a “compelling reason” to justify the deviation. In re Marriage of Gabriel and Shamoun, 2020 IL App (1st) 182710, ¶ 55. The circuit courts have the discretion to determine the appropriate amount of child support, and on appeal the court will not reverse the lower courts determination unless there is a finding of an abuse of discretion. Gabriel, 2020 IL App (1st) 182710, ¶ 56. The statute dictates there is to be an adjustment to income for any obligation “pursuant to a court order for spousal maintenance in the pending proceeding actually paid or payable to the same party to whom child support is to be payable or actually paid to a former spouse pursuant to a court order shall be deducted from the parent's after-tax income, unless the maintenance obligation is tax deductible to the payor for federal income tax purposes, in which case it shall be deducted from the payor's gross income for purposes of calculating the parent's child support obligation.” 750 ILCS 5/505(a)(3)(F)(II).

The Illinois appellate courts determined the effect maintenance has on child support in the case of In re Marriage of Gabriel and Shamoun. The parties, Sam and Michelle, were married in August 2008 and had two minor children together. Gabriel, 2020 IL App (1st) 182710, ¶ 4. Michelle filed a petition for dissolution of marriage in October of 2017, seeking “maintenance, child support, and attorney fees, as well as an equitable division of the parties' marital estate.” Id. ¶ 5. In determining the maintenance award, the court found that Michelle's gross annual income was $27,000, however, Sam's income was difficult to determine due to his inconsistent, contradicting, and uncredible testimony. Id. ¶ 15. Due to Sam’s uncertain income, the court reasoned it was appropriate to use Sam’s identifiable income in 2016 and 2017 to determine his maintenance and child support obligations. Id. ¶ 17. The court found Sam's gross annual income for support purposes was $82,579.62, but the court used the slightly lower figure of $82,572, for unexplained reasons, on the worksheets it used to calculate its maintenance and child support awards. Id. The court determined Michelle was entitled to maintenance and awarded Michelle $1,402.42 per month for 43 months. Gabriel, 2020 IL App (1st) 182710, ¶ 18.  

The circuit court then calculated Sam's guideline child support obligation. Id. ¶ 19. The court calculated each party's net income by subtracting the party's federal and state income taxes, Social Security and Medicare taxes, and self-employment taxes from each party's gross income. Id. ¶ 20. The court determined that Sam's monthly net income was $5,998 and Michelle's monthly net income was $2,470. Id. The court then “multiplied Sam's share of the parties' combined net income (70.83%) by the parties' combined support obligation under the guidelines schedule ($1,956) to arrive at Sam's guideline child support obligation of $1,385 per month.” Id.  The court decided, however, that an “upward deviation” from the guidelines was appropriate in this case due to “the children's needs and [the] history of this case, Sam's demonstrated history of non-compliance with support, * Sam's lack of overnights and [Michelle's] disproportionate exercise of parenting time, and [the] fact that Sam receives additional income which he has not disclosed.” Gabriel, 2020 IL App (1st) 182710, ¶ 20. Based on the findings, the court required Sam pay $1,500 per month in child support. Id.

On appeal, Sam argued the circuit court erred in calculating his guideline child support obligation by failing to account for the maintenance awarded to Michelle and the court abused its discretion in deviating upward from the guidelines. Id. ¶ 27. The appellate court found that the circuit court plainly erred in calculating the parties' individual net incomes for the purpose of child support. Id. ¶ 57.  The circuit court failed to account for the maintenance it ordered Sam to pay to Michelle. Id. ¶ 58.  After examining the worksheet attached to the judgement by the circuit court, the appellate court noted the lower courts failure to include the amount of maintenance in Michelle's income or subtract it from Sam's income. Gabriel, 2020 IL App (1st) 182710, ¶ 58. Thus, the circuit court credited too large a share of the parties' combined net income to Sam and exaggerated his “percentage share of the [parties' combined] basic child support obligation.” Id. The appellate court recognized that the circuit court's decision to deviate from the guidelines may have been “influenced by its error in calculating the parties' net incomes and corresponding miscalculation of Sam's guideline support obligation.” Id. ¶ 66. Thus, the case was remand for the circuit court to properly calculate Sam's guideline support obligation and reconsider whether a deviation from the guidelines is appropriate. Id.   

It should be noted that In re Marriage of Gabriel and Shamoun was distinguished by In re Marriage of Walker and Taylor-Walker. This case pertained to a similar issue where the husband argued the circuit court did not include the maintenance award in its child support calculations. In re Marriage of Walker and Taylor-Walker, 2021 IL App (1st) 192491-U, 2021 WL 1209212, ¶ 31 (Mar. 31, 2021). The court in this case explained that the court in In re Marriage of Gabriel and Shamoun was able to identify the circuit court’s error by reviewing the child support worksheet attached to the circuit court’s judgment. Id. ¶ 35.  However, in the case of In re Marriage of Walker and Taylor-Walker, no such worksheet was included and the court could not review the circuit court’s calculations. Id. Therefore, the appellate court had to assume the circuit court properly deducted the maintenance payment when calculating the child support award. Id.