Child Support and A New Spouse’s Income

Most people are aware that child support in Illinois is now based on both parents’ incomes, pursuant to changes in child support legislation that took place in 2017.  When explaining the changes to clients, I was often asked, “Can my new spouse’s income be factored in to the calculations?”  Previously under Illinois law, a current spouse’s income was not to be considered by a Court when setting child support obligations.  This traditional rule has always been consistent, not only with child support statutes, but also the legislative mandate that, “a husband and wife cannot be liable for debts incurred by his or her new spouse prior to the marriage,” which would include a pre-existing child support obligation.   

However, a November 2018 case arising out of our appellate district may now be affecting this issue.

New Precedent

In a Fifth District Appellate Court case originating in Marion County, the Appellate Court explained that there is existing precedent allowing for Court to consider a new spouse’s income as it relates to child support.  For example, a new spouse’s income must be considered when a Court has to decide whether, “payment of child support would endanger the ability of support-paying party and that party’s current spouse to meet their needs.”  Such is the argument when a payor claims that paying the statutory support amount wouldn’t leave the payor with enough money to be able to meet the needs of the payor and payor’s new spouse and/or family.  In that instance, the new spouse’s income is necessary for the Court to decide the issue.

For the case In re Marriage of Rushing, the 5th District upheld the trial court’s decision to increase a Father’s child support and base support on the combination of his net income and the net income of his new Wife.  The rationale of the Appellate Court was that the statute allowed the Trial Court to consider the resources and income available to Father when deciding whether or not to deviate, up or down, from the statutory guidelines.  In this case, Father was self-employed but earning very little income.  His new wife was also self-employed but earning a substantial salary, and thus she was paying the majority of Father’s expenses.  The Appellate Court ultimately agreed with the Trial Court’s analysis that:

              “Because of [Father’s] spouse’s income, [Father] was able to have a home and minimal household expenses and the benefits of a healthy income while he started a business, earned his own income, albeit minimal, and paid no child support since 2010. Under these circumstances, [Father] had ample resources with which to pay support, yet he did not.”

Essentially finding that Father was voluntarily underemployed by running his own business, something he was able to do on account of his new Wife’s income, the Court then said that child support could be based on Father’s combined income with his new Wife.  Dissenting opinions in Rushing disagree with using a step-parent’s income in child support calculations. But, the majority opinion did not reverse the Trial Court’s decision to calculate support in this manner for this case, indicating that the circumstances allowed the Trial Court to determine child support in this manner.

What does this mean for me?

This decision is less than a year old, so it is unclear at this point how far reaching this decision will become as it relates to calculating child support.  Many practitioners argue that this decision opens the door for petitions to modify child support based on a remarriage, especially if the remarriage impacts the parent’s access to resources.   Other practitioners believe that this case is limited enough that it could only apply to situations where a parent is voluntarily unemployed or underemployed due to the fact they are remarried to someone who financially supports them.

If you have questions about your child support case, whether you are paying support or receiving it, contact us today to discuss how this new case law may impact you.

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