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Modifying Maintenance and Child Support Payments Due to Loss of Income

Divorce Lawyer Modify Maintenance and Child Support

Many people face financial hardship from time to time due to unforeseen circumstances.  When loss of income occurs after a layoff or reduction of hours, questions could arise such as, “can I lower my current maintenance or child support payments?”

 

Legal Basis for Modifying Maintenance or Child Support Payments

To modify an existing support order, such as an order for maintenance (“alimony”) or child support, Illinois law requires that a “substantial change in circumstances” occur after the entry of the most recent support order.  

For example, say that a spouse (the “payor”) was court-ordered to pay spousal maintenance each month.  At the time of entry of the court order, his income was $100,000 per year.  Then at some point after the court order was entered, he was laid off, or his salary was reduced to $50,000 per year.  Based on his lowered income, he may have a basis for filing a petition with the court requesting that his maintenance payments be recalculated.  The same legal requirements would apply to child support payments.

The loss of income must be involuntary and through no fault of the payor.  Quitting a job on purpose to lower one’s income, or even being terminated from a job due to improper behavior could result in a denial of the request to reduce support payments.   Whether the loss of income was involuntary, or by choice, the court could order that the payor perform a weekly job search, and keep a detailed job search diary until he or she finds new employment.  The judge will likely set court dates into the future to check on the status of the job search. 

The most recent maintenance or child support order must not have anticipated a future decrease of income.  If the language of the support order could be interpreted such that a decrease of income was expected to occur, the judge could deny the request to modify the support order.  

 

When Will the New Support Rate Take Effect?

If granted by the judge, the new maintenance or child support rate can date back “retroactively” to the date that the petition to modify was filed with the court.  This means that the judge can apply the new support rate to the time period while the petition to modify was pending with the court, and determine whether the payor should receive a credit for his or her “over-payments.” 

For example, say that Parent A was ordered to pay child support of $400 per month to Parent B.  Parent A’s hours at work were suddenly cut and her income was substantially reduced.  Parent A files a petition to modify child support on March 1st.  The petition to modify child support is granted on May 31st, and her child support payments are reduced to $300 per month.  In the meantime, while her petition to modify was still pending in court, Parent A continued to pay $400 per month for March, April, and May.  The judge could apply the modified support rate retroactively to the date of filing of March 1st, and determine that Parent A overpaid by about $100 per month for the months of March, April and May. 

The payor can request that the payee pay him or her back for any over-payments which had occurred since the date of filing.  Alternatively, the payor could also request a credit towards future payments or back pay owed. 

Based on the facts of each case, it would be within the judge’s discretion whether a modification of maintenance or child support would be granted, and whether over-payments should be accounted for through reimbursement or a credit towards other payments owed.  The parties can also negotiate an agreement as to how the credit for over-payment will be applied.  

It is important to note that maintenance and child support can also be recalculated to a higher amount, based on a substantial increase of income of the payor.  

 

 

(815) 207-9570

Call to schedule an initial consultation

To schedule a consultation with an experienced family law attorney serving Will County, Dupage County, and Kendall County regarding modification of maintenance or child support payments, call Navarro Family Law today at (815) 207-9570.

 

 

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.