Under present law, child support is based on the net income of the child support payer. It is 20% for one child, 28% for two, 32% for three, and 40% for four. Net income is defined in 750 ILCS 5/505 as gross income minus certain specified deductions.
One of the factors is NOT the amount of parenting time that each parent has with the child. However, there are a few Illinois Appellate Court Opinions that say that parenting time may be considered.
In the fall of 2016, the Illinois Legislature passed and the Governor signed a new statute that completely changes the way child support is calculated in Illinois. The new law takes effect July 1, 2017.
The law eliminates the former percentages and creates what is called the income shared approach. “To calculate child support based upon the parent’s combined adjusted net income estimated to have been allocated to the child if the parents and children were living in an intact household”. 750 ILCS 5/505 (a)(1)(D).
The Illinois Department of Health Care and Family Services is to adopt rules establishing child support guidelines which include worksheets for calculating the child support and a table to show the percentage of the combined net income “the parents living in the same household in this State ordinarily spend on their children.”
For example, if there are two children, and if based on the combined income of the parents, $50,000 annually is spent on the two children, and if the father has 40% of the combined income and the mother 60%, and if the father is to pay child support, he would pay 40% of the $50,000 or $20,000 annually.
There is unfortunately no time limit on the Illinois Department of Health Care and Family Services to create these guidelines and tables. However, the law takes effect July 1, 2017 and the current law is stricken as of that date. Therefore, if the tables and guidelines are not ready, unless the Legislature does something, there will be no law concerning child support that can be enforced.
The statute goes on to calculate income in a slightly different manner than under current law.
The new statute defines income in 750 ILCS 5/505 (a) (3). For the first time, it is explicitly clear that spousal maintenance, alimony, received pursuant to a court order is income for child support purposes.
Public benefits pursuant to a means-tested program such as Supplemental Security Income, Temporary Assistance to Needy Families, Supplement Nutrition Assistance Program, and Child support for other children in the household are not income. Social Security Disability and retirement benefits are included in income.
If a parent is unemployed or underemployed voluntarily, there is a rebuttable presumption that the income is “75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.” There is also “a rebuttable presumption that a minimum child support obligation of $40.00 per month per child, will be entered…”.
As in current law, revised as of January 1, 2016, the Court can also order a contribution to extracurricular activities and school expenses, child care expenses, which can include camps when school is not in session.
“If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation.” Then, using the percentage of time the child spends with the other parent, child support is calculated from one parent to the other. Then, the two amounts are netted out.
Assume that the winter break from school is two weeks, the spring break is one week, and each parent gets two weeks of vacation during the summer, which leaves 45 weeks in the year. If each parent gets two weeks in the summer plus half of the winter break, then each parent starts with 21 days. A parent would then need 125 additional days to get to 146 days. If the parties alternated the spring break, then they would each have 3.5 days. Then a parent would need 121.5 overnights in a year. Divide that by 45 weeks remaining in the year, then a parent would need three overnights out of seven for the rest of the year in order to reach 146 nights.
The potential for parents to significantly argue about getting both of them to 146 nights minimum turns into a financial one rather than a consideration of what parenting plan may be best for the children. It can easily be foreseen that one parent will significantly and strenuously argue that the other parent should not reach 146 nights and the parent who wishes that will strenuously argue for it. A Judge may need to attempt to determine if the reason for seeking 146 is merely to save child support.
Unless and until the Illinois Department of Healthcare and Family Services comes out with its guidelines and tables, it is impossible to predict if child support under the new law will be greater or lesser than under current law.