Illinois Child Support: Should I have to pay support when we equally have him the same amount of time?

June 29, 2009 9:30 AM

Illinois Child Support: I'm a father of a 2 year old and I pay the standard 20% plus half of his insurance to his mother. Question: I have him 50% of the time, should I have to pay support when we equally have him the same amount of time?

I'm a father of a 2 year old boy, and I pay the standard 20% child support payment every month, on time. Right now, with my rent payment, bills, and actually having to buy my son clothes, food, and keep a condo that has an extra bedroom and extra space for him to play, it's costing me a lot of money.

I have my son 14 to 16 days out of a month, 50% of the time. Am I crazy to believe that I'm basically paying her child support, plus paying for everything for my son on my own money as well? Is that how it should work?

I've talked with some friends, and almost everyone believes that if I have him 50% of the time, I shouldn't have to pay support at all. I'm not sure if that's right or not. Anyone have any insight?

posted by MMALR to law & government (32 comments total)

This page seems to suggest that the amount of time spent with each parent isn't relevant.
posted by Pants! at 9:34 AM on June 29

You're kidding right? The law is 20% for one child and you pay support. Divorce is expensive. The only thing you can probably fight on is if you're paying alimony. If you're only talking for child support (food, clothes, medical bills, education) why are you trying to back out of this? He is your son.
posted by dasheekeejones at 9:37 AM on June 29

You need to talk with your lawyer to get the answers specific to your child support and custody agreements. If you want your child support agreement changed, you will need to have a judge weigh in on it. Until changes are made with your agreement, keep your payments up to date with no reduction in the amount you pay.
posted by onhazier at 9:38 AM on June 29

Do you make more money than your ex-wife?
posted by amro at 9:39 AM on June 29

From what I've read, if I have my child equally, child support could be discounted. That's all I'm really asking about.

@dasheekeejones - Seriously, cool it a bit. This isn't some grand issue to screw my child out of support. I pay insane amounts of child support, but have my child 50% of the time while I also pay 50% of child care and all of his insurance. All I was asking if there was some sort of precedence as far as discounting child support costs.

@amro - Probably, and I think this is where I would have trouble. I believe I read that incomes comparison + time spent with the child can actually have an effect to discount the payments. I'm not looking to STOP paying, but was wondering if those amounts should be lowered a bit due to the circumstances. If I make more, I'm assuming that wouldn't matter.
posted by MMALR at 9:44 AM on June 29

Your friends' belief that you shouldn't have to pay isn't very helpful in determining whether you are obligated to pay under the law. Answers on metafilter won't fare much better; you'll get plenty of answers from laymen saying you shouldn't have to pay (or that you should pay, or whatever), but that won't get you any closer to a legal answer. Anyone who actually practices law in this area won't be chiming in on this thread because they'll know better than to dispense legal advice to a stranger over the internet.

Short answer: Spend $250 and consult a lawyer on this question. It will be well worth your while.
posted by Happydaz at 9:56 AM on June 29 [3 favorites has favorites]

From my (mostly layman) understanding child support is a highly fact-specific individualized determination, or at least should be. Saying that you are in X situation does not automatically result in Y outcome. We here on the internet can't answer your question. If you believe that you are paying an unfair amount, based on time spent, relative incomes, whatever, you need to:

1) Keep making full on-time payments. Courts will not retroactively modify the support obligations.

2) Go to a knowledgeable local lawyer and fully explain the situation. If the lawyer agrees that the amount is unfair, she will go with you to court to ask the judge to modify it. You cannot get it modified any other way!

3) Keep being a good dad, and make sure whatever the outcome you don't let your son get tangled up in it.
posted by ohio at 9:57 AM on June 29

You need to talk to a lawyer about this. Any links or advice you get here will help inform the conversation you have with a lawyer - help you know what questions to ask, what issues may or may not be relevant, etc. - but you still will need to talk to a lawyer.
posted by rtha at 9:58 AM on June 29

Find a lawyer. Talk to him or her about this.

Done.
posted by dfriedman at 10:01 AM on June 29

In at least some states, support amount can be influenced by how custody is divided. I should warn you that it is very difficult for fathers to get answers without consulting a private attorney. Frequently the state child support enforcement and family law centers are staffed by people who will bend over backwards to make it difficult for fathers to see any sort of fair outcome. You are probably familiar with this already. So, like many have already said- talk to your lawyer.
posted by hellboundforcheddar at 10:07 AM on June 29

FWIW, it sounds like the mother is the custodial parent and you have visitation. Visitation and support are two different things entirely. Perhaps what you are looking to do is have joint physical custody which may be more involved than just modifying support.

You need to look at your Parenting Agreement or Parentage Order. If you don't have it handy, it is on file with the court clerk in your county. It helps to have copies of all pertinent documents when you meet with an attorney and will keep the costs down.
posted by readery at 10:12 AM on June 29

It's not about how much you have him. It's about your ex's ability to support him compared to your ability to do so. You told amro that she "probably" makes less money than you do. There should be no probably about it - that info is spelled out in your court docs.

Also, I'm with readery when she says that it sounds as though his mother is the custodial parent. I infer that from your phrase "actually having to buy my son clothes, food, and keep a condo that has an extra bedroom and extra space for him to play" If you were thinking of him as your son of whom you have joint custody, you likely wouldn't quibble about being required to feed and clothe him, and you would probably refer to it as "a condo with a bedroom for my son" not an "extra room."

I'd elaborate on how I feel about your choice of phrasing, but it would likely be deleted by mods. Suffice it to say, you do sound like you're trying to get out of caring for your child. For his sake I hope you work out your issues before he grows old enough to sense your feelings.
posted by philotes at 10:36 AM on June 29 [1 favorite has favorites]

Don't know about Illinois law, but in Connecticut, my husband got his child support payments for his two daughters eliminated because we had them slightly more than 50% of the time and were paying most of their clothing expenses, more than 50% of their food, etc. He and his ex had joint custody with her as the residential parent; the only reason we didn't pursue residential designation is because we live in a different school district and we didn't want them to have to change schools.

They are on state insurance because their mother has a low enough income to do so (CT has a good SCHIP program). At the time we took her to court, my husband told the judge that he would be willing to put them on his medical insurance if he could claim at least one of them as a dependent on his taxes, but for some reason the judge decided that she could keep up with the state insurance and keep claiming them both.

How long have you had your son 50% of the time? I think a good bit of the reason the judge was willing to do this for us was that we proved very clearly how much we actually did for them--far more than the original custody agreement--for a good three years. (We also did this without a lawyer, because the one time we ever had a lawyer in custody court she screwed us over; we did far better demonstrating everything on our own with good charts and graphs, letters of testimony, etc. Not saying that that works for everyone, but it did for us.)
posted by dlugoczaj at 10:45 AM on June 29

As far as I know, it's generally about having equal rights at both homes, not about custody. The state doesn't want the kid to be having franks and beans at one house and caviar at the other. My personal opinion is that you're out of luck and this is your responsibility, so deal with it. If she does make more money, then you may have more options.

Consult a lawyer.
posted by Lullen at 10:54 AM on June 29

@philotes The phrasing was of poor choice. I have no plans of not caring for my son. I was merely stating the situation. I was basically trying to put across the situation so that I could be given a first hand account by someone. I understand contacting a lawyer is my best bet, but $250 isn't exactly easy for me to throw at something that may end up being a dead end. I would like to have more money so that I can provide a bit better environment for my son, specifically with child care.

Basically, I was trying to say that since I provide all the things I'm supposed to provide such as housing, food, clothing, etc... 50% of the time, does that involve some sort of discount on the support payment? Obviously, this is something I'd ask a lawyer from what everyone has stated, but I was hoping I could get at least a first hand account before dumping money to a lawyer to talk about it.

@everyone I do have joint custody, and she is the "residential" parent. We live in the same town, although not same school districts, but it isn't a problem in which I can't take my son an extra half mile to the other school district. The town is divided into many school districts, but easily accessible for me.

@dlugoczaj This is somewhat what I was looking for, just some sort of first hand account. I have him 14 to 16 days per month, depending on who starts the month with him. I basically have him every other weekend plus Monday, Wednesday, and Fri, Sat, Sun counts as the weekend. So, some months I have him over 50%, some slightly under 50% of the time.

It has been roughly over a year that this has been going on. I think I may have to wait till the three year mark in Illinois, but I was just trying to get some idea if this was a possibility or if it really didn't matter.
posted by MMALR at 11:01 AM on June 29

FWIW, many lawyers will do a 15 or 20 minute phone or in-person consult for free. Call around and ask.
posted by Lullen at 11:14 AM on June 29

I didn't say this above, although you may have gleaned it from the insurance comment, but my husband does make more money than his ex, but he did so by (at the time) working three jobs. (He is now down to two, largely because he no longer has to pay the child support and could quit one.) I think the judge wasn't impressed by the fact that he was working the three jobs and STILL providing more than 50% of care, while she was barely working one and providing substandard care.

(My income--a good bit of which goes to support the kids, out of moral rather than legal obligation--would have tipped that scale even more unequally, as I make more money than both my husband and his ex, but in our state laws it could not be factored in legally and was completely off the table. Don't know if you have any kind of situation like that, or if that differs from state to state.)
posted by dlugoczaj at 11:24 AM on June 29

MMALR, I'm in the same boat as you and it does suck. I consulted divorce lawyers and since I make more than my husband and the law is 20%, then that also means my husband is responsible for about $187 a week. And making more is relative. It's not like I"m pulling in 7 figures and have no debt. We're struggling financially as a couple. Separately, I saw it as my husband couldn't afford to live in a junk apartment and no way would I let our son be in that environment.

So the unfairness goes both ways. Selling the house and paying off our debts leaves us both with about $10k a piece, then finding our own place (since apts in Chicago are almost or are equal to rent, it's not cheap), then paying for childcare, food, saving, etc. divorce is ridiculous. I found it not worth it (for now).

Sorry you went through it. Divorce laws are so blanket now in order to make up for the past---men not having to pay anything, women getting custody 100% even when it was wrong, etc. so everyone suffers a little bit.

Good luck. Maybe if you and your ex can work out something more private and with a mediator, things can get adjusted.
posted by dasheekeejones at 11:51 AM on June 29

From what I've read, if I have my child equally, child support could be discounted.

This is true; the operative word here is "could."

I've talked with some friends, and almost everyone believes that if I have him 50% of the time, I shouldn't have to pay support at all.

Not correct. This is less an issue of time spent and more an issue of funding of the care and feeding of the child. As said upthread, it's to keep the kid from bouncing between caviar and lobster one week, and Spaghetti-O's the next.

In Texas family courts (IANAL so I speak only anecdotally to the Texas side, and can't speak to anywhere else), some judges are now considering child support orders based on the "offset formula."

The basic idea in layman's terms is this:

Say Mom and Dad are "joint conservators" -- i.e. regardless of custody or support, both parents have the right to jointly participate in educational, religious, decisions, etc. Mom is listed as "primary" or "residential" guardian in the decree (again, not necessarily based on custody but because one parent has to be and it's usually the mother). Assume that parents share custody at 50% +/- 1%.

Mom makes $30,000 a year. Dad makes $60,000. So assume that's a grand total of $90K to be measured toward the kid's maintenance. 20% of $90K is $18,000. So each household should roughly be spending $9000 per year on the child.

20% of Mom's salary is $6000.
20% of Dad's salary is $12000.

The higher salary needs to off-set the difference to the lower salary, in order to make sure that the standard of living is roughly equal for the child in both homes. Therefore, Dad should pay $3000 to Mom, which means that Dad has $9000 to spend on Child and Mom has $9000 to spend on child.

Under this notion, instead of Dad paying $12K to Mom over the course of a year, Dad pays $3K to Mom -- which is half of the difference between the 20% at his house and the 20% at Mom's.

Do some research, and talk to a lawyer, but the bottom line is that there is in fact some precedent for a more equitable support arrangement.

Of course, you'll likely have to go to court to get it ordered, and you should be wary -- I know personally of three families in similar situations where the mother was so hellbent against losing any of "her" income from the child support that she actually retaliated by trying to reduce the father's custody, so as to continue to justify the higher payment.

You'll have to consider whether that's worth it to you; would you continue to pay what you're paying now if it means you retain 50% of your son's time? (That's rhetorical, of course. Point being you should think about all the possible outcomes.)

Also, your son's age is advantageous. He's too young to know what's going on. If you have to go to court over custody, support, etc., do it now, and not later when he's in school and aware of the conflict. Consider that the non-child-support expenses are only going to increase. This is the right time to be asking these questions and getting them resolved.
posted by pineapple at 11:54 AM on June 29 [2 favorites has favorites]

I know nothing about MO state law, but in the states I do know about, child support orders can be adjusted at any time. There are also mediation services available in many states to help work out custody and support issues, and agreements reached there can sometimes be incorporated into a support order. You could call the family court and see if there was any assistance available for pro se litigants if you were going to deal with this on your own. Having said that, assuming that this is a significant part of your income and an issue that you will be dealing with for the foreseeable future, it could very likely be worth paying a lawyer.
posted by mercredi at 12:05 PM on June 29

Is your relationship with your ex-wife good? If you agree to a smaller percentage beforehand, going to court to get the papers drawn up again will be pretty cheap in the long run. Of course, if she needs/feels she needs that money, you might be in for a world of trouble going to court again--they can always find you aren't paying enough. 20% honestly seems pretty good and you get the see your kid a lot, which has to be worth something (IANAL but my parents are divorced and I know many people my age who are divorced with kids).

Additionally if your relationship with the ex isn't so hot, you might want to think about improving it, because you are going to have to deal with her for the rest of your life, and you might as well make things easier on yourself!
posted by shownomercy at 12:20 PM on June 29

@shownomercy We are on good terms, but I find that all of my money has gone into way nicer things for her lifestyle whereas I'm stuck in an apartment until my job gives me a significant raise of some sort. The checks rolled in, and she's suddenly in a new car and has a house. I can't even afford a new car, let alone a house. Of course, this has nothing to do with anything really because in the end, I can't exactly do anything about where the money goes if my son is taken care of.

I think the difference in our standards of living is ridiculous considering I make more money than her. I can't provide the home and environment for my son that she does because a lot of money goes to her out of my income.
posted by MMALR at 12:26 PM on June 29

This is what lawyers are for. Fix it to your mutual satisfaction (or mutual dissatisfaction) now, or the days of those "good terms" are numbered.
posted by nax at 12:39 PM on June 29

So your objection to a lawyer is that you don't want to spend a lot of money on something that's a long shot? Fine ... call a few family law attorneys up, ask them how much it will be for a half hour consultation. For some, the cost will be zero. For others, it will be $35, or $50, or $100. During that consultation, explain your problem and ask them what they think the chances are of a resolution that allows you to pay less money. Then you can do the math and determine if it's worth it. Ideally you'd be able to negotiate some sort of contingency agreement with the lawyer where you didn't pay their fees for the work unless they reduced your monthly support payments by X dollars, but unfortunately contingency arrangements in family law are against public policy :-(.
posted by Happydaz at 1:13 PM on June 29

@Happydaz Well, I don't want to blow a lot of money to find out that it isn't possible in my circumstance. I'll have to check around on free consultations, but that'd be the route to go I suppose.
posted by MMALR at 1:23 PM on June 29

By pressing this issue, you could jeopardize two circumstances that add a lot to your quality of life: (1) half your son's time, and (2) a decent relationship with his mother. Both of these things add a lot to your son's quality of life, too.

I disagree that a two-year-old is too young to understand this kind of tension -- angry phone calls, frosty hand-offs, overheard remarks to family and friends, etc. I have witnessed close-up a non-amicable divorce with a two-year-old, and he has been under an incredible amount of stress that has expressed itself in a lot of different ways over the past year (he is now three). If your son is handling things well, and you haven't had any changes in income since the support order was put in place, leave it alone.
posted by palliser at 1:34 PM on June 29 [1 favorite has favorites]

@palliser Definitely things I need to think about... but to be perfectly honest, I know I make significantly more than her, so it may just be something I need to deal with. She has a situation in which she is with someone new who makes a lot of money and can provide a home and everything else for her while she just banks the child support money. I can't really do anything about that because it's between my income and her income.
posted by MMALR at 1:45 PM on June 29

At last, the truth comes out!

Rest assured, MMALR, that if your wife and her boyfriend ever tie the knot, his income will then be added to hers in the eyes of the court, and you may be the one receiving support checks. (That's the way it works in your neighboring state of MO, anyway.)

Of course, if your ex is smart she knows that, and likely won't marry the guy for quite some time.

And, sorry to get on your case, but now you say you "know [you] make significantly more than her" [emphasis mine] whereas above you said you "probably" make more than her.

I'd venture a guess that you've been obfuscating the issue of relative income because you didn't want to have to explain that the reason her standard of living is so much higher is that her boyfriend is providing it. And you know that there's likely very little recourse for you in that case.

Frankly I wish you'd stated this from the beginning. Your anger and frustration seem much more justifiable to me now. A lawyer might be able to help you, so that's still something you need to investigate, but it seems much more unlikely to me now.

Honestly, if you truly are on good terms with your ex, you might try talking with her. Maybe with a mediator involved, as suggested above. Maybe not, though, if you think that would put her off. But if you can show her that little MMALR junior has to eat Cheerios three meals a day when he's with you, and you can't afford to replace his dinosaur footie pajamas with the hole in the armpit, her heart might soften a bit. She may decide that as long as she's got her boyfriend supporting her she can afford to let you pay less child support.

It's worth a shot, anyway.
posted by philotes at 2:43 PM on June 29 [1 favorite has favorites]

philotes said: "Rest assured, MMALR, that if your wife and her boyfriend ever tie the knot, his income will then be added to hers in the eyes of the court, and you may be the one receiving support checks. (That's the way it works in your neighboring state of MO, anyway.)"

This is in fact a possibility in the state of Illinois. But it's worth noting that in Texas, the income, assets, and whatever else of later spouses of either biological parent have zero bearing on the support and custody agreement. Ex-wife can remarry Donald Trump, and poor hand-to-mouth dad will still owe his 20%; each state varies.

She has a situation in which she is with someone new who makes a lot of money and can provide a home and everything else for her while she just banks the child support money.

Unfair as it may seem, this is totally her right. You have no idea what's going on in their situation, and what he "can provide" isn't the same as what she has a fiscal or legal stake in. If she and this dude break up, then the child support she's been banking might well go to keep her and your boy off the street.

So your objection to a lawyer is that you don't want to spend a lot of money on something that's a long shot?

Frankly, I wouldn't spend the money on the lawyer for this right now anyway, unless your amateur research (Google "family law child support Illinois" or "YOURCOUNTYNAME County" -- you should pull up loads of websites of attorneys specializing in family law in your jurisdiction who are holding forth on the current state of affairs for free) indicates that offset child support is the new gold standard.

The reason is that with the new boyfriend in the picture, it will look to the courts like that was your sole motivation. Sad but true.

Additionally, the 50-50 custody is working for you all right now, but you haven't been at this very long, and 50-50 still isn't standard in most family courts. You'd likely need to be able to demonstrate a couple of years of solid, successful 50-50 before you could walk in and reasonably get a judge to listen to a request for a reduction.

I'd say just keep very good records of your expenses on behalf of your son outside of support, and wait for a more opportune time to pursue this.
posted by pineapple at 3:35 PM on June 29

Oh. Thanks for the update. MMALR, it would make me craaaaaazeeee to know that my ex was predicating so much of my son's life -- the home he lives in, one of the people he lives with, basically everything that comes along with who's in the household and what the household income is -- on a boyfriend-girlfriend relationship, so soon after the huge shift in his life brought by divorce (I'd guess, based on your son's age).

That makes it more important to keep your 50-50 custody. The boyfriend's house is your son's as long as the boyfriend loves your son's mother. Your home is your son's as long as you love him, which is to say: forever. Don't open the order up.
posted by palliser at 5:27 PM on June 29

I'm sorry to come late to this, but I've been in this boat. I am in this boat.

First and foremost, you need to talk to a lawyer. There is absolutely nothing wrong with changing the court order as the situation changes, so don't feel like you're trying something naughty. You are entitled to certain things under the law, and equitable support is one of those things.

In WI child support and placement issues are separate issues and generally handled separately. Which is to say that it's doubtful you would lose any visitation from seeking to modify your child support obligation.

Also, in WI, the income difference between households is taken into consideration. Spouse/boyfriend income is not. That said, the court can and will impute an implied income onto a parent if the facts warrant it - But you need to talk to a lawyer to make that happen.

You should take the time now to find a lawyer in your area. Even if things are going well, you will probably need one at some point in the future, and having an attorney already on retainer can make that much less stressful on you. You have the time now to do a lot of research and interviews, take advantage of it.

My recommendation to you is to absolutely find and retain a good lawyer. Make it your priority. Trust me, the money is well worth the aggravation saved - and you'll be doing yourself and your child a favor by doing it.
posted by Pogo_Fuzzybutt at 7:15 AM on June 30

It's not the boyfriend's responsibility to do *anything* for your ex or your child. If you lower child support based on the fact that her boyfriend has money, you're putting your child's financial welfare in the hands of someone else (who may or may not be in this for the long-haul, but nonetheless is not his child). We now know that you make much more money than her and you have issues with the possibility that her boyfriend may be contributing to her lifestyle. What he does for her and your son is purely by choice, but this is your obligation.
posted by Lullen at 11:04 AM on June 30