Unintended Consequence of the New Divorce Laws in Illinois

By Sharon Count, CDFA

July 5, 2018 – Illinois adopted new maintenance (spousal support, alimony) laws on January 1, 2016 and new child support laws on July 1, 2017. During the period of transitioning to the new laws, people going through divorce calculated the maintenance and child support using either the “old way” adopted in 1984, or, in anticipation of the new 2016-2017 laws, the “new way.” The old way took into consideration child support, first, and maintenance, second. The new laws have flipped the order, taking into consideration maintenance, first, and child support, second. Each method works exclusively, and the ordering should never be intermingled.

S1 + M1 = P1 (Adopted in 1984 Child Support + Maintenance = Payment)

M2+ S2 = P2 (Adopted in 2016 & 2017 Maintenance + Child Support = Payment)

M1 + S2 ≠ P3 (Mixing of 1984 Maintenance + 2017 Child Support ≠ Doesn’t Work!)

Even though the courts require a substantial change in circumstance for child support to be changed or modified, people are being taken back into court by the non-custodial parent wanting to “re-work” child support considering the “new way” when the case was originally settled using the “old way.” This puts the custodial parent to a great disadvantage with having already accepted a lower maintenance amount when their divorce case settled, and now facing a lower child support payment in their post-divorce case. For some of my clients, this reduction in child support means they can’t make their mortgage payment and puts them at risk of losing their home and medical insurance. Their children also suffer because there is less support for their food, clothing, and activities.

Since 1984, child support was calculated first, based on the number of children and applied as a percentage to only the non-custodial parent’s net income. Then, maintenance was added on top. Using the non-custodial parent income of $150,000, child support for 2 children might have been calculated as $2,519 net income per month, and maintenance might have been calculated as $1,500 gross taxable income per month, totaling $4,019 payable monthly to the custodial parent.

Today, the calculations have flipped the order. Maintenance is calculated first, using an income-sharing model which considers income from all sources for both parents, including a provision for imputing, or adding, anticipated income to a voluntarily unemployed or underemployed parent. The amount of maintenance under this new law is calculated by taking 30% of the payor's gross income minus 20% of the payee's gross income.

Today, child support is calculated second, by taking each parent’s monthly gross income, including the imputed income and maintenance received by the custodial parent, and converting to net income, using the Illinois Department of Healthcare and Family’s Gross Income to Net Income Conversion Table. Then, the combined net income of the family is compared to a schedule that provides the basic child support obligation, based on estimates for child rearing costs for an average intact family with similar income and number of children. Finally, child rearing costs are allocated to each parent.

Using the non-custodial parent’s income of $150,000 and imputed income of $40,000 for the custodial parent, maintenance is now calculated as $3,000 gross taxable income per month and child support for 2 children is now calculated as $537 net income per month totaling $3,537 payable monthly to the custodial parent. This amount is lower than the “old way” because income from both parents (income-sharing) is now considered.

However, if one combines the “old way” of maintenance and the “new way” of child support, this apples and oranges calculation would only provide $3,056 payable monthly to the custodial parent, who then faces a 24% reduction in income. This adulterated method of calculating maintenance and child support yields an unintended consequence of the new principles and guidelines that our Illinois State Bar Association, Family Law Section Council, worked hard to create. Each method works exclusively, and the ordering should never be intermingled.

Alimony will no longer be deductible beginning January 1, 2019.