A primary purpose for the 2016 changes to Illinois divorce and family law was to make the system more flexible and more accommodating to changing needs. While “side agreements” remain unenforceable, it is now easier, especially in terms of parenting time modifications, to formalize these arrangements and make them part of the official orders in the case. When it comes to child support changes, the court makes more of an official inquiry and many of the old rules still apply.
Parenting Time Modification
These plans can be modified at any time based on the agreement of the parties, so long as the change is in the children’s best interests. The petitioning party need not even show substantial change in circumstances.
This change is significant. Many times, parents will enter into a side agreement regarding pickup times, drop-off locations, visitation hours, and other items. The parties may voluntarily abide by the change for months or even years. Almost inevitably, however, one parent eventually wants to undo the side agreement and go back to the way it was. In these instances, the other parent has absolutely no recourse because the change was not in writing and signed by the judge.
The agreement provision even trumps the new two-year waiting period before a petition to modify can be filed. A party may also file early if there is a significant danger to a child’s physical or emotional health, such as a parent’s marriage to or cohabitation with a registered sex offender.
After the two-year waiting period expires, the court will approve a minor change or an agreed modification even if there are no changed circumstances. Disputed or major changes must be based on changed circumstances; however, the petitioning party need only prove this change by a preponderance of the evidence, which means more likely than not.
These rules normally apply to both custody and visitation issues.
Child Support Modification
A change, either up or down, must be based on a “substantial change in circumstances,” a phrase that the law does not define. There are a number of factors that the court may apply to make a determination.
Job change is perhaps the most common basis for modification. The change must be permanent, so a performance bonus or workflow-based pay cut may be insufficient. Moreover, the change must have been wholly unanticipated at the time the prior orders were entered. Finally, the move must be made in good faith. In other words, an obligor cannot leave a high-paying job for child support reduction purposes.
Other factors include:
- The needs of the children,
- Relative economic situations of the parties, and
- Any other factor the court determines to be relevant.
Many of these secondary factors apply mostly to spousal maintenance, as Illinois is still a percentage-of-income state for child support purposes.
Partner with Experienced Family Law Attorneys
If the original orders are no longer applicable or workable, it is important that your voice be heard. To help ensure this happens, call Glasgow & Olsson today. After hours and off-site appointments are available.