Question: I am the father of two children with two different women. The children are 14 years apart. I am currently paying 56% of my income in support and am in dire straights. Is there a law in the state of Illinois of the amount I have to pay? What can I do?
Answer: First, I must preface that I do not practice in Illinois. You should definitely contact a domestic litigation attorney licensed in Illinois to review your orders for support. Most jurisdictions have a formula that the court uses to determine the amount of support. For the purposes of this question, I am assuming you have two separate orders of support for each other children.
In my jurisdiction, your friendly neighbor to the North, Wisconsin, there are two formulas for determining support. One is if the parents have shared placement and the other is a straight percentage when one parent has primary placement. The court can deviate from the guidelines but there must be a reason for the deviation.
In addition, we have a statute for fathers in your situation who have children with different women. In most formulas, the more children you have on a given order, the higher the percentage of support you will have to pay. For example, in Wisconsin, using a straight percentage formula, if there is one child with the same mother, then the payer would pay 17% of his or her gross income; if there are two children with the same mother, then the payer would pay 25% of his or her gross income. However, under a serial payer statute, the first child would receive 17% of the payer’s income. Then, the payer’s income for purposes of determining support for the second child would be reduced by the amount he or she pays for the first child and the second child would receive 17% of the remaining gross monthly income. Therefore, in Wisconsin, instead of two orders for support (17% and 17%) which would be 34% of the payer’s income, the payer would be paying 31% of his or her income (if you apply the serial payer formula above, combining the two payments of support would amount to 31% of the payer’s gross monthly income).
There are a lot of questions that I would have regarding your present orders, the percentage you are paying is quite high and I would want to know if that is the percentage of your gross or net monthly income. In addition to serial payer statutes, many states also have a maximum amount that is allowed to be deducted from a payer’s monthly income. Sometimes however, the court imputes income to payer’s who are not earning to his or her earning potential in order to avoid support or who the court believes are not being truthful on his or her statement of income. Self employed payers tend to fall into this category if there are allegations that he or she is working for cash to avoid a paper trail. In this scenario, the court order may only be for 31% of the income you earn based on the court’s findings. However, in reality, this may be a much higher percentage if you are really earning less.
Another reason you may be paying a high percentage of your income is that you may have had a change in financial circumstances since the original orders were entered. Most jurisdictions allow the parties to come back to court for a modification of the original order if there has been a substantial change in the circumstances which would include substantial increases or substantial decreases in income. Many jurisdictions also have a definition for “substantial.”
Your first step should be to contact an attorney in Illinois to review your orders and your financial circumstances to see if filing a motion to modify support is in your best interest. Cordell & Cordell has many attorneys licensed and located in Illinois who would be happy to help.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.