In this article, you will learn…
- What family court orders can be modified,
- The process of modifying family court orders, and
- What documents are required for financial discovery.
What Family Court Orders Can Be Modified In Illinois?
The family court orders that can be modified in Illinois are…
- Child support,
- Custody and visitation, and
- Spousal support.
These orders can be modified if there is a change in circumstances. If a change in circumstances can be proven, it can be modified even within two or three months of the original order. In general, a change of circumstance is presumed to have taken place at least every two years.
Some factors that may prevent modifications to spousal support are…
- Prenuptial agreements,
- The original judgment decided at trial, or
- Change in circumstances analysis.
When a party loses a job or has a decrease in pay, they may wish to modify their spousal support. Often the change in circumstances analysis will show that the party voluntarily changed this circumstance, however, so no modification will be made.
What Is The Process To Petition For Modification Of Child Support Or Spousal Support In Illinois?
The process to petition for modification of child support or spousal support in Illinois involves…
- Filing the motion
- Sending a notice to produce and request interrogations, and
The motion to modify child support or spousal support would be a few paragraphs of allegations that say when the original order was entered and the values that the order was based upon. You would then outline how these values have changed to now meet the threshold for change of circumstances. These values may include…
- A child has become sick,
- Additional unforeseen medical expenses,
- A change in income, or
- Other circumstances for which additional financial support would be needed.
The conclusion of the motion would include saying that the other party is able to meet the new expenses. Once you have completed writing the motion, you would file it with the court.
Filing the motion is going to be the easiest part of the process. From there, the process will become far more complicated. You have asserted that the other party is able to meet the increase of expenses, so you will now have to seek financial discovery.
In addition to the financial disclosure affidavits and supporting documents, financial discovery will require the exchange of the below information at a minimum:
- Federal and state income tax returns,
- Checking and savings bank statements for at least six months,
- Most recent pay stubs with day-to-day earnings,
- Six pay stubs if your paystubs don’t reflect day-to-day earnings, and
- W-2 from the previous filing year.
Generally, even more financial statements will be required during the discovery process than the minimum listed above. These can include…
- Credit card statements,
- Proof of lease,
- Car loans,
- Personal loans,
- Pension statements, or
- 401(K) statements.
In addition to these documents, you may receive interrogatories asking if you have any pending litigation suits against you or on your behalf. This is to determine whether or not you are expecting a windfall settlement or outcome in a civil case or workers’ compensation case.
Once you have the whole picture of the financial situation and where the money is coming from, you would then be able to have your hearing to determine whether or not you can modify the support order. In some cases, the parties will agree to a modification and therefore there wouldn’t need to be a hearing.
If there is an algorithm that the statute created, you would pay for this software. You would then put the income number in and the algorithm would spit out how much support will be. The issue with this ends up being that you need to determine what income to put into that calculation. The statutes are clear on what counts as income and what doesn’t, but there can be many hearings about this.
Most experienced attorneys will know at the outset whether or not you are going to win your case and will advise you not to move forward. Sometimes they will fight for you, go through the motions and the hearings, and do their best for their client.
It can get a little trickier if there are cash transactions or cash deposits into a checking account. Any regularly consistent cash deposits would need to be sourced to determine if they are income to be included in calculations. That’s when there will be a hearing to determine how to view these transactions and whether they should be included in the income calculation.
The process for child support and spousal support modification motions are essentially the same in that you file a motion, you ask for discovery, you review the discovery, and then you have a hearing if no agreement is reached between the parties.
Pursuing a modification of child support or spousal support is far easier than defending against a party who is asserting you should now pay more in support or if you are a party making a motion to decrease what you are currently paying in support.
A common scenario is when a father says that he can no longer afford the child support amount due to a change in his employment. It is often a defense to being held in contempt for not paying his support, and a judge must determine if he lost his job or had a decrease in pay due to his own negligence or if it was due to no fault of his own.
If the judge finds that the change in circumstances was not the father’s fault, they will not hold the father in contempt for not paying support. The father then may think that the amount of his support will change based on this decision, but that is not the case. This was not a motion to modify support, but to jail or fine the father for not paying support.
After the matter of contempt is settled, the father will need to file a motion to modify child support due to a change in circumstances. The complication then becomes that all of those missed child support payments and any interest accrued between not paying and the date of filing your motion for modification are still going to be there. You will still have to pay that back support even if you win your motion to decrease the amount of child support you have to pay going forward.
As soon as there is a change in your circumstances, you need to file a motion for modification. Doing so immediately might help to alleviate some of the burdens of back child support during the process.
For more information on Modifying Child/Spousal Support In Illinois, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (312) 772-3346 today.