The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

Deviation From The Child Support Statute (750 Ilcs 5/505(a)(2)) Regarding Child Support
By Christopher D. Edmonds

This article is written for those new attorneys who have the misguided notion to practice in the area of domestic relations, as well as those who have been practicing for a number of years and have made the crazy decision to practice in the area of family law and wish to torture themselves and increase their stress level. For those attorneys who have been seasoned in this area for years, I am sure you are familiar with this trend in the law with reference to recent case decisions. Please bare with for the benefit to you for reading this article will be that you can continue to say you keep up on the Bar Journal Articles and keep abreast of the law and recent trends, if nothing else, it could cure your insomnia.

As everyone knows or should know, the Section of the Illinois Marriage and Dissolution of Marriage Act which deals with child support is 750 ILCS 5/505, which states as follows:

750 ILCS 5/505(a)(1)

"The Court shall determine the minimum amount of support by using the following guidelines:

Percent of Supporting

Number of Children

Party’s Net Income

1

20%

2

25%

3

32%

4

40%

5

45%

6 or moe

750 ILCS 5/505(a)(2)

"The[se] guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) they physical and emotional condition of the child, and his educational needs; and

(e) the financial resources and needs of the non-custodial parent."

The section seems straightforward and easy to apply once the appropriate income records of the non-custodial parent are received, the most accurate and relied upon method of applying this information to determine the correct amount of child support to be paid is through utilization of the FIN Plan Software, which takes into account, not only the percentage of child support, tax deductions, number of children, retirement accounts, real estate taxes, mortgage interest, union dues, prior support obligations, itemized deductions (higher education expenses and student loans), insurance, self employment taxes and prepares monthly budgets Many of our judges have this software at their fingertips and most practitioners do or should, as well.

Where the fun begins is when subsection (a)(2) applies. This is when the parent with the obligation to pay support is in an income bracket which requires deviation from the standard percentage determination. In order for Section 505(a)(2) to apply, the Court first must conduct an inquiry and analysis to make a determination that a parties income falls into the "above-average" income category. What has recently has been occurring is that there have been case decisions wherein the Courts have made determinations which have given practitioners a barometer as to when a deviation can be permitted. The Appellate Court of Illinois, Fifth District recently considered this precise issue in the case of In re Marriage of Garrett, 336 Ill.App.3d 1018, 785 N.E. 2d 172, 271 (5th Dist. 2003). The Garrett court conducted an in-depth analysis and inquiry into the income of the former husband and determined that he did not meet the burden to qualify for a downward deviation from the child support statutory guidelines, so Section 5/505(a)(2) did not apply.

The Garrett court further determined that there had been a substantial change in circumstances which required an increase in child support for the parties’ minor child. The Garrett court held that "A court may increase the amount of child support on a Motion to Modify solely on the basis of a parent’s increased ability to pay." (emphasis added)

The Garrett court further determined that "it can be presumed that the cost of raising a child increases as the child grows older for purposes of determining whether to modify child support." The Garrett court also wrote that "a determination of child support under the Illinois Marriage and Dissolution of Marriage Act begins with the presumption that the guidelines will be applied." As a result, the Garrett court held Respondent has the burden of overcoming the presumption that the guidelines must apply. The Garrett court further held that "compelling reasons must exist in order to overcome the presumption that the statutory child support guidelines will be applied in order to permit the Court to deviate from the guidelines." The burden remains on the non-custodial parent to set forth specific "compelling reasons why the Court should deviate from the statutory child support guidelines." The Garrett case further holds that "when one parent earns a disproportionately greater income than the other, that parent should bare a larger share of the support."

If the Court were to make a determination that there should be a deviation from the statutory guidelines, the Court’s finding, according to the Garret case, "shall state the amount of support that would have been required under the guidelines, if determinable and the court shall include the reasons for the variance from the guidelines."

When a determination to deviate has been made, the court must determine with specificity, pursuant to the statute, the financial resources and needs of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child, and the educational needs, and the financial resources and needs of the non-custodial parent.

In re Marriage of Rogliano, 198 Ill.App.3d at 412, 144 Ill.Dec. 595, 555 N.E. 2d at 1119, the Court determined "Where a non-custodial parent has the ability to pay support in excess of the stated needs of the child, a court may order child support in excess of the needs to enable the child to enjoy the standard of living he/she would have had if the marriage had not been dissolved."

In re the Marriage of Lee, 246 Ill.App.3d 628,615 N.E. 2d 1314, 186 (4th Dist. 1993.) The Court considered the issue of support of a high income parent. In the Lee case, the court determined that "where individual incomes of both parents are more than sufficient to provide for the reasonable needs of the parties’ children, taking into account the lifestyle the children would have, absent dissolution." The court was justified in awarding child support below guidelines. The Court further stated that "In fixing a child support obligation of a high income parent, the trial court should not limit the amount of child support to the child’s shown needs, because the child is not expected to live at a minimal level of comfort while the non-custodial parent is living a life of luxury."

The Appellate Court of Illinois, Second District decided another case relative to a deviation from the statutory guidelines in the case of In re: the marriage Ackerley, 333 Ill.App.3d 382, 785 N.E. 2d 1045, 266(2nd Dist. 2002). In the case of Ackerley, the non-custodial parent earned an income of approximately $500,000.00 per year. The Court cited in that case the respective sections of the statutes, specifically 750 ILCS 5/505 (a)(2), relative to the factors that must be considered for a deviation from the guidelines. The Court determined that a straight guideline award would have been $5,510.00 per month. The Court entered an order in the amount of $3,000.00 per month for the minor child.

The Court determined the straight 20% guideline support figure would result in a "windfall to the child." In the Ackerley case, the other factors considered by the Court for deviating from the statutory percentage guidelines were where the Affidavit of Expenses produced by the ex-wife included expenditures for her live-in boyfriend. If a straight percentage award had been entered it would have constituted 90% of Petitioner’s stated monthly expenses. The Court also considered one of the questions argued by the ex-husband and that was "how many pagers, cell-phones and cars does one child need?" In applying the "totality of the circumstances test" the court made its determination on all factors to deviate below the guidelines. This means that all of the factors in 505(a)(2) must be considered, as well as all other related factors, not just one or two. The Court in the Ackerley cited the Lee case previously referenced and stated, "a support award need not be limited to the shown needs of the child."

CONCLUSION

It is apparent that there is a growing number of cases for and against deviation from the statutory guidelines for child support. The courts must take the individual circumstances in each case and apply not only 750 ILCS 5/505(a)(1), as well as 750 ILCS 5/505(a)(2), as well as the case decisions that have been recently rendered both for and against deviation from the guidelines

Christopher D. Edmonds is a partner of the Law Offices of Dvorak & Edmonds, Ltd., in Westchester, Illinois and is actively engaged in the practice of law in Cook County and all the collar counties. He received his B.A. from Monmouth College, Illinois in 1974 and his J.D. from Northern Illinois College of Law in 1980. His practice includes family law, criminal law and municipal work. He was a Cook County State’s Attorney for five years. The firm represents three (3) municipalities, in the capacity of Village Attorney, as well as a Village Prosecutor.


 
 
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