Due to the overhaul of Illinois’ child support law a few years ago, some divorced or separated parents are working under a drastically different child support system than others:

• For child support agreements created before July 1, 2017, the non-resident parent pays a percentage of his or her income, based on the number of children; and
• For child support agreements created since July 1, 2017, the total child support obligation is determined by the parents’ combined incomes, and the non-resident parent pays a percentage of the obligation that is proportionate to his or her share of the combined incomes.

The new child support model would potentially reduce the payments of a parent who was using the previous child support model. However, the existence of the new law is not enough reason to allow a modification of a child support agreement. 

Recent Case

A parent needs to prove a significant change of circumstances to immediately modify a child support agreement, which is usually a change in income or expenses for either parent. In the recent case of In re Marriage of Salvatore, a divorced father thought he had enough of a change of circumstances to allow him to reduce his child support payments. The parents had completed their divorce in 2015, with the father paying $8,100 per month for child support. The mother was unemployed at the time of divorce but had since been employed as an office worker and nurse.

Because of Illinois’ no-fault divorce law, couples can no longer punish each other for acts such as infidelity when filing for divorce. Previously, spouses may have accused each other of immoral behavior in order to avoid paying spousal maintenance or keep a greater share of the marital properties. Now, irreconcilable differences are the only reason that couples can cite for their divorce. Some couples are instead using prenuptial and postnuptial agreements to try to penalize a spouse’s behavior. A lifestyle clause sets rules for a marriage that will result in a financial penalty if either spouse breaks them. However, you should understand the potential problems of lifestyle clauses before you include one in your agreement.

Enforceability

Lifestyle clauses are relatively new, which means that there is little legal precedent for them in courts. The individual opinions of the judge may determine whether a court enforces the clause. Some judges may reject any provision that penalizes a spouse for fault during a divorce. Other judges may allow the clause as long as:

• The terms of the clause are clear;
• The clause applies equally to both sides;
• Both spouses agreed to the clause; and
• The penalty is fair and does not violate divorce law.

It is important to include a severability clause if you create a lifestyle clause in your agreement. That way, the rest of your agreement remains valid even if the lifestyle clause is unenforceable.

When it comes to artificial insemination and parental rights, there is an important distinction between a known and unknown sperm donor. A man waives his paternity rights and responsibilities when he donates sperm to a medical facility that uses it to impregnate an unrelated woman. The man could not later claim parenting time, and the woman could not force the man to pay child support. However, some men and women enter private agreements for the woman to use a sperm donation to have a child. Illinois courts may not recognize private agreements that claim to waive a father’s parental rights.

Entering an Agreement

Some prospective parents prefer to know the man who will be the biological father rather than using a sample from someone anonymous. They may place a public notice to look for a donor or even ask a friend. When entering a private sperm donor agreement, it is wise for both parties to create a contract that outlines whether:

• The father will have any rights as a parent;
• The mother can request financial support from the father; or
• The father can have a relationship with the child.

It is useful to write out each party’s expectations from the agreement, even if they are unsure whether the contract is legally enforceable.

Since 2016, Illinois has used the term “allocation of parental responsibilities” instead of “child custody.” The name reflects that parenting after a divorce or separation is a shared responsibility, not just a determination of who gets to keep the kids. Each parent must fulfill his or her assigned responsibilities when the children are with him or her. If one parent is incapable or unwilling to assume those responsibilities, then a court may give sole responsibility to the other parent.

Caretaking Functions

Illinois’ Marriage and Dissolution of Marriage Act has a list of parental responsibilities, which it calls “caretaking functions.” There are eight functions that parents are expected to provide for their children during their parenting time:

1. Attending to a child’s nutrition, health, safety, and hygiene;
2. Guiding a child through his or her maturation, such as developing motor and language skills;
3. Teaching proper behavior and providing discipline;
4. Ensuring that a child receives an education;
5. Helping a child develop interpersonal skills;
6. Taking a child to medical appointments;
7. Instilling a sense of morality in the child; and
8. Arranging for others to take care of the child when the parent is not available.

The caretaking functions do not include “significant decisions” related to the children’s education, health, religious beliefs, or extracurricular activities. Parents can make routine decisions when they have the children but must discuss major decisions with their co-parent unless it is an emergency situation.

Getting remarried is an exciting event because it signifies a resolution to your divorce in many ways. You have proven that you can find a new relationship. If you were receiving spousal maintenance, you can break that financial tie to your former spouse. However, your obligation to provide child support will remain, regardless of whether either of you gets remarried. There are limited circumstances in which the child support payments can be modified after one parent gets remarried.

Principles of Child Support

Divorced parents pay child support because they share a financial obligation to care for their children. That obligation will always remain with the two legal parents of the children and not with any new spouses. Your new spouse cannot become the legal parent of your children unless your co-parent relinquishes his or her parental rights and your new spouse adopts your children. Thus, courts have traditionally not considered the income of a new spouse when determining child support payments. However, an Illinois court ruling in 2014 broke with that tradition when it found that:

• A parent’s financial resources can help determine his or her appropriate child support obligation; and
• The income of the mother’s new husband counted as an increase in her financial resources.

Courts will not directly include your new spouse’s income when calculating your child support obligation. Instead, it will reasonably consider whether your current share of child support is fair if your new spouse’s income decreases the percentage of your income that you use for other expenses.