Options When Child Support Isn’t Paid
In Illinois, both parents have a legal obligation to provide financial support for their children. In a separation or divorce situation, one parent usually makes child support payments to the other. If that parent stops paying, the consequences are severe – being held in contempt of court, paying fines and even jail time. If nonpayment continues, it may even lead to criminal charges.
If you find yourself in a situation where your ex stops making child support payments, or if you are the parent who cannot make them, it pays to seek legal assistance. The compassionate and experienced Illinois family-law attorneys at Wolfe & Stec understand the stresses of divorce, and we recognize the concerns parents have for the well-being of their children and the importance of child support. We offer a free initial consultation to examine your individual situation and help come up with solutions that are best for you and your family.
What Are Child Support Obligations in Illinois?
On July 1, 2017, due to Public Act 99-764 that amends the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the method of calculating child support changed. Instead of relying on the net income of the non-custodial parent, the new law creates an income-share system. Both parents are now accountable for child support based on how much they financially contributed to the combined household income while married.
To calculate child support, the courts consider the following:
- Basic Child Support Obligation – The combined value of child support owed by both parents together. This is then divided proportionally between the parents based on their individual contribution to a combined household net income.
- Additional Expenses – Other costs, such as child care and medical costs which are added on top of the basic child support obligation.
- Parenting Time – The amount of time the child spends with each parent.
Based on these factors, the courts determine which parent has to pay child support to the other.
When Child Support Isn’t Paid
If child support isn’t paid, there is a national Child Support Enforcement program that works in partnership with Illinois and other states to ensure children are financially supported by their parents. The program locates non-custodial parents, establishes paternity and support obligations, and enforces child support orders.
The Illinois Department of Healthcare and Family Services’ Division of Child Support Services carries out enforcement through its regional offices. Child support orders are recorded in the DCSS database and payments monitored, so if a parent notifies the DCSS of the other parent’s failure to pay, the DCSS begins collection. This is done automatically if the parent is receiving public assistance.
The following steps can be taken to collect payment:
- Withholding income from a parent’s wages, Social Security, unemployment, workers’ compensation, or veterans disability compensation
- Wage Garnishment – Employers withhold child support from the parent’s earnings until the past-due balance is paid in full.
- Bond — If the parent is not subject to income withholding, DCSS may require posting a bond, security or other guarantee of payment.
- Garnishing state and federal tax refunds
- Credit bureau reports
- Seizure of bank accounts
- Utilizing private collection agencies
- Revocation of driver’s license, S. passport, or professional, occupational or recreational license
- Criminal Prosecution — If a non-custodial parent refuses to pay court-ordered child support for more than a six-month period or owes more than $5,000, the federal government can prosecute. Penalties may include fines and imprisonment, with the amount increasing with the severity of the non-payment. For example, it is a Class A misdemeanor to fail to pay child support for six months or owe more than $5,000, but it is a Class 4 felony with imprisonment for one to three years to be more than $20,000 past due.
What to Do If You Can’t Pay
1) Modify Your Support Order
If you are having problems making child support payments, you should immediately seek to modify your existing support order in court. You will have to explain why you can’t make your payments and ask to have the support amount lowered. However, you are still responsible for the full amount of back child support.
Illinois law allows either parent to ask for a modification review of an order for support every three years or when there is a substantial change in circumstances, including an increase or decrease in income of 20%, or changes in expenses, geographical location, or health insurance rates. For the modification review, parents must fill out a Certification of Income and Expenses form (HFS 2782) to verify ability to pay, financial balances, employment status and other information.
2) Consider Filing for Bankruptcy
If you file for either Chapter 7 or Chapter 13 bankruptcy, there is an “automatic stay” that stops all foreclosures, garnishments, bank levies, and creditors from harassing you. However, the automatic stay does not apply to the enforcement of the collection of child support or alimony, so you will continue to be liable for support previously ordered in family court.
From the date the bankruptcy petition is filed until it is discharged, you may not get behind on any support obligations. If you are already in arrears on the date you file your bankruptcy petition, you may not get further behind, and you must make all regular child support or spousal support payments due until you receive your bankruptcy discharge. If you are already current on support obligations on the date you file, you may not have any arrearages occur until you receive your bankruptcy discharge.
CONTACT US FOR HELP AND A FREE CONSULTATION
Child support laws can be complicated, and you will have to deal with the results for years. If you have questions about calculating child support, or modifying or appealing existing support orders, you should contact an attorney to be sure your rights are protected. The skilled Illinois family-law attorneys at Wolfe & Stec, Ltd. know the laws, the courts and the system and can guide you through the process. We represent and advise clients in all types of child custody matters and have a long history of success.
Don’t delay. For a free initial consultation with an experienced and compassionate DuPage County custody lawyer, contact us online or call 630-305-0222 for a free initial consultation.