Statutory Requirements for Modification of Child Support
In Illinois a supporting parent’s child support obligation can always be modified. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides that a child support obligation can be increased or decreased only upon a showing of “substantial change” in circumstances. In Illinois, only the Court may modify a child support order; and any child support order remains in full force and effect until the Court has approved and entered an order modifying the child support amount. Either parent has the right to file a petition seeking a child support modification. However the parent, so filing for the modification, has the burden of proving to the court that the requisite “substantial change in circumstances” has occurred. Only after that burden has been met may the court determine the amount of increase or decrease in child support.
Proving a Substantial Change in Circumstances
In order to meet the burden of proving a substantial change in circumstance, the party seeking a modification of child support generally must demonstrate to the Court both of the following factors:
- a significant increase (or decrease) in the supporting parent’s
- ability to pay child support
- a significant increase (or decrease) in the child’s needs
Ability to Pay
Neither Illinois statutes nor Illinois case law contain any specific percentage of increased or decreased income, which would result in an automatic modification of a supporting parent’s child support obligation. The determination of whether a parent’s ability to pay has increased or decreased sufficiently to justify a modification of child support lies strictly in the Court’s discretion. In making a determination of a supporting parent’s ability to pay, the Court must consider that parent’s income from all available sources, not just from his/her employment.
Needs of the Children
Any claim that the children’s needs have substantially increased (or decreased) since a prior child support order must be documented through evidence to the Court’s satisfaction. However, it is important to note that Illinois case law has held that an increase in the child’s needs can be presumed if there has been a passage of a number of years since the prior child support order, absent documentary evidence to the contrary. Conversely, if a supporting parent can demonstrate that the child support amount substantially exceeds the child’s actual needs, the Court has the authority to deviate from the child support guidelines and
reduce support so that the parent receiving the support does not obtain a windfall.