Summer in Chicago often brings with it many trips to the ice cream parlor for me and my family. I enjoy good hard-pack ice cream and my wife absolutely LOVES it so if it’s a Sunday and the temperature is 85+ there’s a pretty good chance that I’ll be enjoying the beach and a cone. Good quality ice cream is good, plus, a good ice cream shop has a lot of choices too…sort of like going to the salad bar, it’s fun to choose between a lot of yummy things.
Did you know that there are various ‘flavors’ or types of child support too? I find that a lot of people know that there’s something called ‘child support’ that’s involved in legal disputes in divorce and parenting cases but they really don’t know much about it. I find that the average person sort of knows the equivalent of a plain, vanilla ice cream cone version of child support when the reality is that there are MANY ice cream flavors with MANY topping choices and even MANY cone types these days (love seeing the pretzel cones out there).
Let me divide child support into 2 main categories and then I’ll break things down with even more detail within each of the 2 main categories….
MINIMUM Statutory Guideline Child Support
Illinois child support basics are that both parents have an obligation to support their kids and depending on the financial resources of each parent as well as the parenting time arrangement between the parents, oftentimes one parent will need to pay an amount certain to the other parent. These are some common scenarios:
- Pure guideline child support paid by one parent to the other parent. Illinois law provides that different income percentages be paid by the payor parent based on the number of children (1/20%, 2/28%, 3/32%, etc). This situation remains fairly common when one parent is the clear, majority time parent where the kids are with a parent 70% of the time or more. Although this set-up isn’t as common as it used to be, this would be the classic father who had parenting time only on alternate weekends with his kids. This father would have to pay guideline child support.
- Equal parenting time child support. I see a lot of equal parenting time arrangements these days, especially when kids are real young and when the parents live close to one another. Does a parent have to pay child support if the parenting time is equal? Generally, if the incomes of the parents are fairly equal NO. However, if the incomes are not equal then YES, but, usually less than the statutory, percentage guidelines above. If there’s equal parenting time with unequal incomes I typically see judges take the difference between what each parents guideline child support order would be and then the higher income earner pays that difference to the lower income earner. For example, in a family with one kid mother earns $10,000 monthly (20% child support equals $2,000 monthly) and father earns $5,000 monthly (20% child support equals $1,000 monthly) so we take the difference between 2,000 MINUS 1,000. And mother pays father $1,000 per month in child support.
- BELOW guideline child support. Extremely high income earners generally aren’t going to be stuck paying the different percentage guidelines of child support…20/28/32/etc. In my experience, child support in cases where the payor earns north of $500,000 annually are going to be tied more to the needs of the child so that the receiving parent isn’t getting a huge monetary windfall. There’s no hard/fast rule in terms of how high of an income you need to avoid paying percentage income child support but somewhere in the $400,000 and up category is a rough estimate. We see this in cases involving professional athletes quite often.
- ABOVE guideline child support. I see this arise in cases where a payor’s income is hard to determine. Or I’ll see it where the lesser time parent may be voluntarily working less than full-time and/or has assets available to help support the child/children. Or, as I’ll discuss more below…when there’s a parent who has obligations beyond minimum statutory, guideline child support and doesn’t keep up with those payments sometimes a judge will include say a contribution to school expenses in child support so that it can be garnished from a payor’s wages.
BEYOND The Minimum Statutory Guidelines
Far too many parents only settle for the minimum statutory guideline amount for child support. If you use the IL Dept. of Healthcare and Family Services for child support collection it’s all they pursue (this is a great reason among many others NOT to use HFS for child support collection). Why not get your kids ALL of the financial support that they’re entitled too?
- Expense contribution. The court in its discretion can order parents to contribute to uncovered health-related expenses, child care, education, and extra-curricular expenses. There’s a lot of money in this category that’s often totally ignored. Daycare and after-school care for kids is EXPENSIVE. Most suburban school districts have pretty hefty school registration costs. And if your kids play hockey, look out regarding those costs.
- Dependent Tax exemptions. Obviously this varies a lot based on income and different ‘tax factor’s but the child dependent tax exemptions are worth THOUSANDS of dollars and yet these are often ignored.
- Obamacare Shared Responsibility Payment. The Affordable Care Act provides for fines in the event a child doesn’t have health insurance coverage. This needs to be allocated as part of the child support circle.
You and your children are valuable and expensive. Why not get the financial support that you’re entitled too?
Checkout this Webinar that I presented recently too: How to Get Child Support for you Kids in Illinois: 6 Common Questions Answered.
Your high school student has likely received his or her college acceptance letters for regular admission. In divorce, post- divorce, or parentage cases in Illinois, the Court can order parents to assist their children with their college expenses. In previous posts, we have mentioned that there was a update to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The section covering college contributions was included in these updates.
One of the most significant updates to the College Contribution law is that the court cannot order parents to pay tuition and fees that would be higher than the tuition and fees at University of Illinois at Urbana-Champaign for the same academic year. That’s nothing to sneeze about, as the estimated tuition and fees for the 2016-2017 academic year are $30,638- $35,642.
It is also worth mentioning that the child (“Student”) cannot file their own court-action for college contribution unless there is a death or legal disability of one of the parents who would have had the right to file.
Students who don’t take their academics seriously might lose out. Courts can only order parents to pay for college if the student maintains a cumulative “C” grade-point average (GPA). There are exceptions to this rule. An example of an exception might be if the student missed too many days of school because of an illness and ended up with a low GPA. But if the student spent the semester partying instead of attending class, they could be on their own affording college expenses.
Students who take the 5-year route to graduation may still get help from their parents paying for college, but unless there is a good reason, the Court cannot order college expenses incurred after the student’s 23rd birthday. If the Court finds that there is a good reason, the court can extend it to the student’s 25th birthday but no later.
The Court can order that both parents and the child complete the Free Application for Student Aid (“FAFSA”) and other financial aid forms. The Court can also require the parents to contribute funds for the cost of college applications, two standardized college entrance examinations, including preparatory courses.
In addition to the expenses directly related to the college expenses, the Court can also order the parents to contribute to the actual costs of medical and dental expenses, including medical and dental insurance, and to the reasonable living expenses of the student during the academic year and in periods of recess.
Parents will be happy to hear that the new law specifically allows the Court to consider the parents’ future financial needs, including saving for retirement, when determining each parent’s financial contribution to college expenses. The changes to the law will allow for the court to balance a child’s needs for support in their college years and a parent’s need to provide for their own current expenses and their future needs.
If you have a child that is going to college soon and you don’t have an agreement with your Ex about how you will pay for college expenses, set up a free consultation to discuss your options.
Here’s the trick:
Eliminate the two-thirds (2/3s) of your case that are often TOTALLY UNNECESSARY.
This sounds pretty simple doesn’t it? But like weight loss which is also pretty simple, it’s NOT EASY. But it is possible and I’m going to tell you how…
There are 3 ‘parts’ to most divorce cases and 1 of those parts is really important, but 2 of the parts are not as important and can be eliminated oftentimes and there’s the trick. The 3 parts of a case are as follows:
- Temporary Matters. Temporary simply means what is the set-up while the case is active in court and prior to a final divorce judgment being entered. Meaning is the court ordering things like temporary child support, temporary spousal support, and/or temporary attorney’s fees in the 12-18 months while your divorce case is pending in court.
- Discovery or General Investigating. Legal discovery means the power to force a party to answer written questions and turnover financial data or sometimes it’s taking a party’s deposition. Sometimes this can mean studying the home’s of parents in child custody cases or doing mental health or custody evaluations in contested child custody cases.
- Final Judgment. This is the IMPORTANT one and the one that can’t be eliminated. Here’s where I’m talking about the final judgment of divorce that includes important and major provisions concern financial matters, property division, and terms concerning post-divorce parenting. This can involve critical terms that you’ll need to live with for 15 years and often involve financial terms where thousands and sometimes millions of dollars are at stake.
So the advice to SAVE time and money is to maintain the status quo in terms of how things are being paid for while a case is proceeding. Simply because you and your husband are going through a divorce or separating doesn’t mean that one parent must stop paying for food or rent. We have to bring temporary motions re: child support or spousal support when one parent cuts-off the other parent out-of-the-blue (but it doesn’t have to happen this way). And secondly, extensive discovery and investigation must occur only when one spouse all of a sudden loses access to accounts and log-in information or sometimes one spouse just wasn’t involved in financial matters as much too…that likely is a time when some investigating is necessary.
Items #1 and #2 above can consume MONTHS of time in your divorce case and they’re often avoidable.
It’s that time of year, again: time to file your taxes. Are you looking to get as much of a refund back as possible? One of the most desirable exemptions is the dependency exemption. Parents are entitled to a dependency exemption for each child they support. However, if you are divorced or filing separate from the other parent, only one parent can use the exemption. (See IRS Publication 504 Divorced or Separated Individuals for use in preparing 2015 Tax Returns.)
The General Rule – The custodial parent gets the entire dependency exemption.
A dependent is either:
- Your child or a relative,
- Who meets a set of tests.
The IRS defines custodial parent as:
- The parent with whom the child lived for the greater number of nights in 2015; or
- If the child was with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income. (See IRS Publication 503 Child and Dependent Care Expenses.
COURT ORDERED DEPENDENCY EXEMPTION
Sometimes it makes sense to allow the noncustodial parent claim the exemption. For example, if the custodial parent is unemployed or makes little income, it would make sense to allow the non-custodial parent to use the dependency exemption to get a bigger tax return.
Parents can agree between themselves who gets the exemption, or the court can order who gets the dependency exemption each year. It is common for divorced or separated parents to negotiate who can take the exemption. If there are two children, each parent might each claim one dependent. If there is one child, the parents might alternate the exemption. If the non-custodial parent does not contribute at least 50% to the dependent’s expenses, it is less likely that the non-custodial parent will get the exemption. If there is a child support arrearage, it is also common to not allow the exemption.
COURT ORDERS vs. IRS
Although a court order allowing the non-custodial parent to take the exemption is enforceable through the state court, it has no bearing on the IRS. The custodial parent needs to release the exemption by signing an IRS Form 8332 Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent or similar statement. The custodial parent becomes the “non-custodial parent” for tax purposes and cannot claim the exemption that year. The noncustodial parent becomes the “custodial parent” for tax purposes and must attach the Form 8332 or the statement to his or her return.
If the noncustodial parent has a child support arrearage at the end of the year, the custodial parent can revoke the Form 8332 release with the IRS. Whether that is allowed by the court depends on your court order. The custodial parent can use Part III of Form 8332 for this purpose and must attach a copy of the revocation to his or her return for each tax year he or she claims the child as a dependent as a result of the revocation. The custodial parent must also give (or make reasonable efforts to give) written notice of the revocation to the noncustodial parent.
Did you finalize your divorce or parenting judgment and neglect to cover who gets to claim the dependency exemption? Has there been a substantial change in circumstances that might entitle you to claim the dependency exemption? Were you entitled to claim the dependency exemption but the other parent claimed it?
We offer FREE initial consultations to discuss your claims and see how we can help resolve your matters as quickly and painlessly as possible.
Every year there are varying changes and usually ‘smallish’ changes to the laws that govern our fields of work, namely divorce and parenting rights/responsibilities cases. That’s what the legislators in Springfield do. However, effective January 1, 2016 the changes aren’t smallish in 2016; both of the laws that govern much of what I do on a daily basis: Illinois Marriage and Dissolution of Marriage Act and Illinois Parentage Act have been 100% rewritten from scratch. So unlike most years where a small handful of sections of a law are amended this year the entire framework and terminology governing EVERYTHING is new.
***As an aside, these massive changes are among the reasons why you cannot trust your legal representation to an attorney who isn’t focused on family law. Attorneys who dabble in multiple areas of law have always been bad to work with as an opposing lawyer and bad for there clients but the new law simply makes in MANDATORY that you not trust you and your children’s lives to a non-specialist. We at the Chicago Family Law Group, LLC practice only family law.
Without further ado, the 9 MOST IMPORTANT changes to Illinois Divorce/Child Custody law in 2016:
- All Divorces are ‘no fault’ & No Waiting Period. Previously there was 2-year separation requirement that could be shortened to 6-months when pursuing a ‘no fault’ divorce. Now simple, uncontested divorces can be completed in 2-weeks.
- Child Custody and Visitation are No More. Now parenting disputes will involve dividing “Parental Responsibilities” and “Parenting Time.” In substance these are just word changes because “custody” always meant decision-making responsibilities and “visitation” always meant parenting time but over time the words custody/visitation clearly began to have baggage associated with them where clear winners and losers were created. This change will defray and eliminate a lot of useless court fights that previously existed only because someone was worried about losing custody.
- Geographic Relocation of Kids. Formerly a sole or residential custodial parent had to get a Court’s approval to move out-of-Illinois. As of 2016, a parent who has at least 50% of the court-ordered parenting time must get a Court’s approval to relocate 25 miles (Chicagoland) or 50 miles (Illinois beyond the 6 “Collar Counties”) with a child or children. I like that relocation is now tied to mileage rather than state boundaries I personally just feel like 25 miles is a pretty small circle and would have preferred 50/75 miles for everyone. I could see this promoting more court fights.
- Student Loan Payments Now a Specific Deduction for Child Support. This change actually might be the #1 reason to bring your case back into court immediately if you’re re-paying a significant student loan obligation because now it’s nearly assured that your “Net Income” which child support is based on must be reduced by the student loan repayment obligation in the same way as say federal or state taxes. So if you have a student loan obligation of say $300 per month or more you should call us now @ 312-893-5888.
- Affirmative Obligation to Report New Job or Job Termination to Other Parent. This should help people get the child support that they’re entitled to. In the past it was pretty easy for a parent to hide a new job if they covered their tracks and I feel like oftentimes this information could only be discovered if a parent were careless on social media. The new law allows that a person can be held in contempt of court for not reporting the job change plus I would surely expect that child support will be made retroactive to a new job’s income if it’s not reported to the other parent.
- “C” Average and Age 23 Limits on College Expenses. Previously college contribution ended when a student obtained a bachelor’s degree so adding a requisite grade point average and age limit surely tightens things up for the kids and may be a way to stop your contribution if your child isn’t meeting these new criteria.
- Financial Deception Penalties. It’s not new that parties’ in family law matters must prepare a financial affidavit that sets forth information about their income and assets that can serve as the basis for things like child support, spousal support, and attorney fee contributions. What is new is that the law now provides that parties’ can be punished if these aren’t prepared accurately with likely punishments being financial sanctions and attorney fee awards.
- Fixed Term Spousal Support for Less than 10-year Marriages. Previously I regularly saw maintenance “reviewed” for many, many years in short-term marriages with the result being no certainty on this obligation and little incentive for the recipient former spouse to become self-supporting. Now if you are ordered to pay spousal support post-divorce it can at least be made clear/certain as to the time and amount rather than an unpredictable obligation.
- Pre-Birth Voluntary Acknowledgement of Paternity. One of the ways that a father establishes himself as the legal father is through an administrative procedure that includes signing/witnessing a Voluntary Acknowledgement of Paternity. If there’s 100% certainty this is something to consider especially in situations where you might be worried about one of the parents relocating or withholding your child from you after he/she is born.