Child Support and Its Enforcement

Under Illinois law, both parents owe a duty of support to their children. The Marriage and Dissolution of Marriage Act provides that the non-custodial parent will pay child support based upon his or her net income. Net income is defined in the statute as gross income from all sources less properly calculated taxes, Social Security, FICA, mandatory union dues, health insurance premium for the dependent child and expenses incurred in earning the income (such as payments on a mechanic's tools). Under current law, child support is at least 20% for one child, 28% for two children, 32% for three children, 40% for four children, 45% for five and 50% for six or more children. As a practical matter, these guidelines are used to set child support absent special circumstances that justify a court in deviating up or down from those percentages. These special circumstances include, but are not limited to, a child with special needs, such as additional expenses for physical therapy, or a parent earning a very substantial income, which would permit the support to deviate lower than the statutory percentage.

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For the last several years, child support has typically been taken directly from the payor parent's pay through withholding. Recent problems with the State Disbursement Unit have led many attorneys to try to avoid the State Disbursement Unit with its attendant problems.

In addition to this cash payment by the non-custodial parent, responsibility for the child's health expenses must also be addressed. This could include a provision in the order directing one or both parents to provide health insurance for the child, and allocating responsibility for expenses not covered by insurance. This responsibility would depend upon the parties' respective incomes. In addition, special expenses such as parochial school or daycare expenses can also be addressed.

Public offices, such as the Illinois Department of Public Aid, obtain location information from employers, labor unions, and others about putative fathers and other non-custodial parents in order to establish paternity or to establish, enforce or modify an existing child support obligation.

It is absolutely essential that parents paying child support not pay in cash or other means that cannot be proven. The courts have repeatedly held in favor of the recipient parent if he or she denies receiving the child support, and the paying parent has no proof that the funds were paid. It is worthwhile to open a bank account, if for no other reason than to pay child support, assuming that it is not being paid through withholding. Money orders and cashiers' checks can certainly be used as evidence of payment, but the receipt can be lost in a move or otherwise, and then the evidence is gone without the help of the issuing bank, which will charge for any search of the records to recover documents. If using cash to pay child support, it is essential to get a signed receipt from the recipient parent, but this has the same problems discussed with a money order or cashiers' check. With a checking account, even if the checks are lost, copies can be retrieved from the bank at minimal cost.

An issue that comes up occasionally is whether an overpayment of child support can be used to offset an arrearage in another area, such as unpaid medical expenses or health insurance premiums. In a case handed down in 2004, the Appellate Court reiterated its previous decisions that a non-custodial parent that voluntarily overpays child support cannot have that overpayment credited to other obligations. The general rule is that no credit is given for voluntary overpayments of child support, even if they are made under the mistaken belief that they are required.

In the event there is a voluntary overpayment, it is best if the issue is raised immediately upon discovery, as there is the possibility that, if the over paying party acts very quickly, equity will allow the credit, provided that doing so will not work a hardship. This is not something I would prefer to rely upon, but if it is the only argument that can be made, then it must be made. Remember, the argument should be made immediately.

Social Security Benefits

In the event that the non-custodial parent is receiving benefits from the Social Security Administration (SSA), it is important to note that the SSA benefits are based on the amount of the Social Security taxes he or she paid, payable typically upon retirement or disability. That person's child or children should received an SSA dependant allowance until he or she reaches age 18. This check should be issued monthly directly to the custodial parent, or if the child does not live with the parent, to the child. Under Illinois law, the dependent benefit paid to or for a child is to be used as a credit on the non-custodial parent child support obligation, from the date that the dependant benefits commence, but in no event prior to October 21, 1993. Any dependant allowance over the amount of the order of the child support is considered a gift and cannot be used to satisfy a prior arrearage. If the benefit amount is less than the court ordered child support, the non-custodial parent is responsible for the difference.

If the parent receives Supplemental Security Income (SSI), which is a program for individuals who are disabled or at least 65 years old with low income and limited assets, there are no benefits paid to spouses, children, or anyone else. These benefits cannot be levied or garnished for child support or spousal support because SSI is not considered income, but a form of federal public aid. As a result, when an administrative order is entered and SSI payments are the only source of income, in calculating the non-custodial parent's net income the SSI is normally excluded.

Child Support Liens

Placement of lien

A lien arises by operation of law against the real and personal property of the non-custodial parent for each installment of overdue support owed by the non-custodial parent. 750 ILCS 16/20(e). First, however, a transcript or certified copy of the lien must be filed in the Office of the Recorder in the county in which the real estate is located. 735 ILCS 5/12-101. The recorded order for support secures each and every payment, although it may be recorded only once and payments may last 20 years into the future. The State's Attorney may institute an action for child support payments upon the filing of a verified complaint by someone owed child or spousal support. 750 ILCS 16/5.

Priority and Duration of Lien

In Illinois, a lien on real property for past-due child support has priority over any subsequently recorded lien, providing notice to subsequent purchasers, assignors, or encumbrances. 305 ILCS 5/10-259(d). The lien is inferior to the lien for general taxes, special assessments, and special taxes levied by any political subdivision or municipal corporation of the State. 305 ILCS 5/10-25(d). The judgment acts as a lien on real estate for seven years from the time it was entered, unless the judgment is revived before the seven-year period lapses. 305 ILCS 5/12-101(d). The lien secures all past-due installments or payments of child support, but not to the extent that those payments are shown paid by the clerk of the circuit court's records or the records of the state agency receiving payments. Thus, the amount of the lien is determined by the amount of the overdue child support payments outstanding at the time of an inquiry.

Methods of Enforcing Lien

The State holds the lien on all legal and equitable interests of responsible relatives in the amount of past-due child support. 305 ILCS 5/10-25(a). The State's lien is enforceable upon the recording or filing of a notice of lien in the recorder's office of the county or counties in which the real estate is located. 305 ILCS 5/10-25(d). The State may foreclose the lien in a judicial proceeding to the same extent and in the same manner as in the enforcement of other liens. 305 ILCS 5/10-25(i). The procedure to levy on a child support judgment is the same as for other judgments, found in the Code of Civil Procedure at 735 ILCS 5/12-115 et seq.

Release of Lien

A child support lien may be released in Illinois by the following steps. First, the obligor must record a notice of filing and an affidavit stating that all payments have been made. Second, these documents must be recorded with the recorder in the county in which the lien appears on record. Third, proof of service of notice and affidavit upon the obligee must accompany the request for release. If the state or the obligee does not object within 28 days of the notice, then the lien is released. 735 ILCS 5/12-101(c).