Frequently Asked Questions Regarding Children And Divorce

Parenting Time And Parental Responsibility Questions

Q: How does the court determine which parent a child will live with?

A: The term "custody" was removed from Illinois legal vernacular in 2016 in large part to emphasize that both parents are encouraged to remain actively involved in a child's life. Courts now address where a child will spend his or her days and nights as "parenting time." If the parents cannot agree on a parenting time arrangement, the court will make the decision for them based on what is in the child's best interests. When determining the child's best interests, the court will consider many factors, including:

  • The child's age
  • The child's gender
  • The child's physical and mental health
  • The parents' physical and mental health
  • The parents' lifestyles
  • Any history of abuse
  • The emotional bonds between the parent and the child
  • The parent's ability to give the child guidance
  • The parent's ability to provide the basic necessities such as food, shelter, clothing and medical care
  • The child's routines, including home, school, community and religion
  • The willingness of the parent to encourage a healthy, ongoing relationship between the child and the other parent
  • If the child is above a certain age, the child's preference
  • Who served as the child's primary caretaker prior to the end of the parents' relationship

Q: How much does it cost to litigate parenting disputes to a resolution?

A: Much more than the average couple can afford! Each case is different and the issues involved in litigation can range from basic to complex. The cost of the trial depends largely on the number of professionals involved and the number of hours expended by those professionals. Minimally, there will be two lawyers (one for each party), a lawyer for the children (often called a guardian ad litem) an allocation of parenting time and responsibilities expert (psychiatrist or psychologist) and fact witnesses. The more witnesses, the longer the trial and the greater the expense.

Q: Are there steps I can take to resolve parenting time disputes without trying the case outright?

A: Mediation is mandatory in most counties in Illinois and is ordered if the parties do not reach agreement on parenting time within a short time after filings. In my experience, about 65 percent of cases settle after mediation. Many parenting time matters are resolved by a combination of mediation and negotiation. The skill level of the parties' attorneys is directly related to the ability of the parties to reach an agreement on allocation of parenting time and responsibilities. When interviewing divorce attorneys, you should ask what percentage of their cases settle before trial, as well as what steps they will take to facilitate settlement after the case commences. A case that settles on the eve of trial has undoubtedly been pending for at least a year and has already cost the parties a fortune. Whereas, a case that is given prompt attention from the beginning by attorneys who are focused on helping the parties reach agreement will be concluded more quickly and at much less expense.

Child Support Questions

Q: Who has the duty to pay child support?

A: Both parents have a duty to pay reasonable and necessary support to provide for the reasonable and necessary physical, mental and emotional health needs of the minor children. Generally, the noncustodial parent is the parent who pays child support.

Q: What is the definition of "net income" for child support purposes?

A: "Net income" is defined as the total of all income from all sources, minus the following deductions:

  1. Federal income tax (properly calculated withholding or estimated payments)
  2. State income tax (properly calculated withholding or estimated payments)
  3. Social Security (FICA payments)
  4. Mandatory retirement contributions required by law or as a condition of employment
  5. Union dues
  6. Dependent and individual health/hospitalization insurance premiums
  7. Prior obligations of support or maintenance actually paid pursuant to a court order
  8. Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.
  9. That portion of the health insurance premiums for which the supporting party is responsible

Q: Must the court always follow guidelines or may special circumstances result in higher or lower than guidelines awards?

A: A court may deviate above or below these guidelines based upon the best interests of the child considered in light of evidence, including the following relevant factors:

  • The financial resources of the child
  • The financial resources and needs of the parent who the child lives with most days and nights of the year
  • The standard of living the child would have enjoyed had the marriage not been dissolved
  • The physical and emotional condition of the child and his or her educational needs
  • The financial resources and needs of the parent who the child does not live with for most days and nights

A court may deviate below the guidelines only upon entering specific findings to justify the lower amount. No specific findings are needed to deviate above the guidelines, but in practice, the courts generally state their reasons, which usually have to do with the children's special needs or the condition of the custodial parent.

Q: May the support order be stated in terms of the percentage and thus vary as the paying parent's income varies?

A: No. The statute requires that the amount be calculated based upon the guidelines and other factors, but the support order must be for a definite dollar amount. This causes problems when the supporting parent is self-employed or his or her income is variable. Since child support is a judgment, and to facilitate collection and enforcement by state authorities, the Legislature has determined that a percentage order will not be valid.

Q: What happens when the income of the parent who does not have primary caretaking responsibilities cannot be ascertained?

A: When it is impossible to ascertain a parent's net income because of unemployment, default or any other reason, support is to be ordered in an amount considered reasonable in the particular case.

Q: Can a court order an employer to deduct child support from the supporting parent's salary and pay it directly to the receiving parent?

A: Yes. If the payer spouse is a W-2 earner and not self-employed, payroll deduction is fine. Difficulty arises when the payer spouse is self-employed, earns cash income or is in a commission-only job.

Q: How are child support orders enforced?

A: Enforcement of child support orders may be had through application to the child support enforcement division of the state attorney's office in each county. This service is provided without charge to custodial parents who require assistance in collecting support. The receiving parent may also take action through a private attorney or represent himself or herself in petitioning the court for enforcement.

The receiving parent may file a petition to have the defaulting parent held in contempt for his or her failure to obey the support order. Failure to comply with a support order is contempt of court, which may result in probation or a jail sentence for as long as six months, possibly on a work release program. Action can also be taken against the defaulter's driver's license.

Q: Must child support terminate when the child reaches age 18?

A: In Illinois, adult children (over the age of 18) have the right to continued support for education, to finish high school and attend college or trade school, or if they suffer some impairment as a result of which they cannot support themselves. In the matter of a college education and post-childhood support, children of divorce have greater rights than those of intact families.

Both parents, or in the event of a parent's death, the estate of the parent, are responsible for the support of children over age 18 when:

  • The child is mentally or physically disabled and not otherwise emancipated
  • The child is attending high school or post-secondary college, professional or other training after graduation from high school. Educational expenses may include room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses, including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.

Q: Can a parent be required to provide support in addition to the guideline amounts?

A: Additional support in the manner of housing or other direct payments may also be ordered, such as payment of the children's medical, dental and hospital expenses, a health insurance premium and contingent medical expenses not covered by such insurance, private school tuition, or fees to meet the child's special needs. When the child has special needs or the income and earning capacity of the payee parent are such that a guideline award will not produce an adequate level of support, an upward deviation is not only permitted, but expected.

Q: When a supporting parent is unemployed, does the court have any power to require him or her to work and pay child support?

A: Yes. When the person owing a duty of support is unemployed, the court may order him or her to seek employment and report periodically with a diary of efforts to find work and to participate in government job search, training or work programs.

Q: What impact does a parent's remarriage or having other children have on child support?

A: Children are not to be penalized for circumstances or living arrangements over which they have no control. Child support may not be reduced below the statutory minimum based solely on the fact that the custodial parent supports others not entitled to support by the noncustodial parent, or the custodial parent is receiving welfare. The situation becomes complicated when the custodial parent has other children in addition to the current respondent's child to support. In such event, the child's need is one relevant factor in determining support, along with other relevant factors, including the social problems surrounding one sibling having more than others, the visitation (or relationship) with the noncustodial parent, and the extent to which payments by the respondent parent actually benefit those who are not directly entitled to the support benefit. The court will consider all relevant facts in an effort to provide support for all of the children, but there is a sort of "rule of thumb" that the first family ought not be deprived to meet the needs of the second family.

Q: Can a parent get out of paying past-due child support?

A: Theoretically, no. The right to receive a child support payment becomes vested when the payment is due, and the receiving parent has an absolute right to the payment as ordered, irrespective of circumstances or conditions. The court is without power to enter any order with respect to a payment already due other than to enforce it.

Q: Can the child petition the court to enforce or collect past-due support?

A: No. Only the receiving parent may do so. While child support is for the benefit of the child, the right to receive child support and enforce payment is that of the receiving parent, not the child. The child has no standing to compel a parent to pay arrearages in child support.

Q: What if the supporting parent is ill and can't work or loses his or her job?

A: Because child support is vested in the receiving parent immediately when it becomes due, it is essential that a supporting parent immediately seek court intervention in the event of job loss or another situation adversely impacting ability to pay support. Until a petition to modify or abate child support is filed in court, child support arrearages will accumulate, which the court will not have power to erase. After filing of a proper petition, the court has power to abate or reduce the child support on the basis of a change of circumstance.