• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Any comments on this?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Tunie

Member
I recently read of an Appellate Court decision in Illinois regarding a post-high school educational expenses issue the Illinois Court recently considered. It would appear that this Court has decided that a stepmother or stepfather's income will now be allowed to be considered in paying for college expenses and this may cross over in determining child support as well.

This is a big step away from Illinois' traditional stance of NOT considering the income of any stepmother or stepfather. It would also appear that this will open the door to also considering the income of any live in - boyfriend, girlfriend, SO, whatever. Any income contributed to the household could now be considered.

If I may quote, this is the information I read:

"llinois Appellate Court opens the door to include new spouse income in determining child support.

In every divorce proceeding involving children, the issue of child support will arise and those issues are governed by the Illinois Marriage and Dissolution of Marriage Act Sections 750 ILCS 5/505, 5/505.1, 5/505.2, 5/513. Those provisions essentially provide for the establishment of child support payments for the support of minor children, non-minor children and payment of educational expenses.

The traditional view is that both parents have an equal obligation to support their children. In that regard, the Child Support Guidelines theoretically take into consideration the custodial parent's obligations in relation to the amount which the non-custodial parent pays, on a monthly basis to the parent maintaining residence for the minor children.

Further, the traditional view in establishing child support obligations or modifying child support obligations is that the financial resources of a new spouse are not to be considered in the calculation or determination of child support. That view took into account the lack of legal obligations a stepparent has towards the financial support of a stepchild.

However, the law on this issue has developed and evolved as stated in a recent Second District Illinois Appellate Court decision, which holds "a trial court may equitably consider the income of a parent's current spouse in determining an appropriate award of child support." In Re the Marriage of Drysch, 2000 WL 815278, (ILL.App2 Dist.).

The Drysch decision dealt with the issue of each natural parent's obligation, under 750 ILCS 5/513, to contribute towards their child's post high school educational expenses.

In determining the amount and/or percentage each parent was required to contribute, the Court held that it was appropriate to consider the financial resources available to both parties in determining whether they could meet their individual financial needs in relation to the Court's order for contribution towards educational expenses.

In this instance, the Court considered Mother's current spouse's income in determining her obligation towards contribution to those expenses and her ability to meet her monthly financial obligations. The Court evaluated Mother's "financial resources" and determined that her new spouse's significant income was a component of "resources" to which she has access, thus properly considered.

Surprisingly, the Drysch decision did not specifically limit the consideration of a new spouse's income to the issue of post high school educational expenses.

Instead, the Court opened the door to consider a new spouse's income when calculating the basic child support obligation as well as those equitable considerations, which the court may order in determining a parent's total financial obligation for their children.

Those equitable considerations include potential deviations from the standard child support obligation based on considerations of new or additional children, ability to support oneself, contribution towards health insurance costs, uninsured health expenses, daycare expenses, and any other discretionary aspect of the child support component.

Historically, when considering all aspects of an award of child support divorce courts were required to ignore the "financial resources" contributed into the new household of the ex-spouse, by their new spouse. Now, the Illinois Appellate Court has opened the door for a more pragmatic financial assessment in determining the impact that a support order will have on the paying parent, as well as the receiving parent.

Indeed, this recent decision will have an effect on those parents marrying into wealth and those parents marrying just for love. Regardless of the effect on any particular family, the calculation of child support and its accompanying components for minor and non-minor children have become increasingly more complex.

A simple percentage calculation based on the guidelines enumerated in 750 ILCS 5/505, and 5/513 may now include an assessment of all "financial resources" available to the divorced parents in determining support amounts and the impact such awards will have on their new households."

Any comments? I will refrain from any personal comments of my own as I would like to see what the legal eagles on here think about this without muddying the waters with my own person opinion. I post this here for consideration and comments only - not to start a war!
 


VeronicaGia

Senior Member
The only good I can see coming out of this is people who remarry and decide to be stay at home parents, therefore, they don't contribute to the support of their child from the previous relationship, but even then it's a stretch in my mind. I am adamently against bringing other people into this. I can see the divorce rate climbing in IL, and with that I can see more support and alimony orders...even if just to stop the judges from ordering too much money or from taking the income of a new spouse into consideration.

This is especially sad since IL doesn't take the income of the CP into consideration in the first place, and already discriminates against the NCP.
 

Crazed98

Member
It makes sense. The reason for the child support is to pick up the slack from the parent that left.

If the parent is replace and is making more money then the child should be fine.

But this may make limit the rights of non-custodial parents in some way though.

If the new parent makes more money and the former one does not have to pay any child support the custodial parent (if it was a bad divorce) may see no reason to maintain a good neutral relationship with the ex. Which will effect the child in the end.
 

MandyD

Member
Crazed98 said:
It makes sense. The reason for the child support is to pick up the slack from the parent that left.

No, the reason for child support is to support the child/ren. Just because two parents aren't living in the same house doesn't mean that one is slacking, although is does happen occasionally.


If the parent is replace and is making more money then the child should be fine.

A step-parent isn't a replacement for a parent!!!

But this may make limit the rights of non-custodial parents in some way though.

It sure as hell shouldn't.

If the new parent makes more money and the former one does not have to pay any child support the custodial parent (if it was a bad divorce) may see no reason to maintain a good neutral relationship with the ex. Which will effect the child in the end.

I've read and reread this last portion and I still can't make heads nor tails of it. I do hope you are not referring to a new spouse as the new parent though.
 
Last edited:

Crazed98

Member
MandyD said:
**I've read and reread this last portion and I still can't make heads nor tails of it. I do hope you are not referring to a new spouse as the new parent though.


Sorry, I reread it and it is a little unclear.

I was just stating that if the NCP is ordered to pay very little or nothing the CP will not make a point to keep a good relationship with him/her which will effect the child in the long run.

Usually however unpleasant it is the CP tries to maintain a reasonable relationship with the NCP to keep the money coming in.
 

MandyD

Member
I was attempting to reply to all your points and screwed something up with the quote box. Let me try again.

"It makes sense. The reason for the child support is to pick up the slack from the parent that left."

**No, the reason for child support is to support the child/ren. Just because two parents aren't living in the same house doesn't mean that one is slacking, although is does happen occasionally.

"If the parent is replace and is making more money then the child should be fine."

**A step-parent isn't a replacement for a parent!!!

"But this may make limit the rights of non-custodial parents in some way though."

**It sure as hell shouldn't.
 

Crazed98

Member
MandyD said:
I was attempting to reply to all your points and screwed something up with the quote box. Let me try again.

"It makes sense. The reason for the child support is to pick up the slack from the parent that left."

**No, the reason for child support is to support the child/ren. Just because two parents aren't living in the same house doesn't mean that one is slacking, although is does happen occasionally.

"If the parent is replace and is making more money then the child should be fine."

**A step-parent isn't a replacement for a parent!!!

"But this may make limit the rights of non-custodial parents in some way though."

**It sure as hell shouldn't.


If a parent leaves then there is less money supporting the child. That is the slacking I was talking about.

A stepparent IS a replacement one day you have old daddy next day you have new daddy. You might not like it but thats the way it is. In some cases new daddy is a lot better than the old one.

I did not mean it in a legal sense but most issues between NCP and CP are settled outside of court. Since NCP divorced the CP (and if the NCP isn't ordered by court to pay any decent amount of $)they don't want anything to do with the other and can make NCP's life hell everytime it is they are supposed to get visitation which indirectly effects the children.
 

BelizeBreeze

Senior Member
I have several problems with this story.

1. the factual issues are not exactly as stipulated in the cited decisions;

2. The statute has been on the books for years, just not used in this particular situation before;

3. The reporting is somewhat misleading.


750 ILCS 5/505 6.B 2 (b) (from Ch. 40, par. 505) states in part:
If there is a unity of interest and ownership sufficient to render no financial separation between a non‑custodial parent and another person or persons or business entity, the court may pierce the ownership veil of the person, persons, or business entity to discover assets of the non‑custodial parent held in the name of that person, those persons, or that business entity.

Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition. (a-5) 1-9 also describe the circumstances under which either party may seek a modification of the support award.

As for my issue with the reporting (if this was a cut-n-paste) or with the presentation as presented here, is that is misleading on the whole.

in Re the Marriage of Drysch, 2000 WL 815278, (ILL.App2 Dist.).
the appealate court reversed the lower court's award of 10% cost of educational expenses to the NCP, MARK J. DRYSCH and remanded the case back to Kane County for further proceedings consistent with the decision.


The plain language of section 513(b)(1) states that the trial court shall consider "the financial resources of both parents." 750 ILCS 5/513(b)(1) (West 1998). The term "resources" has been defined as "[m]oney or any property that can be converted to meet needs" as well as the "available means or capability of any kind."

Black's Law Dictionary 1179 (5th ed. 1979). Based on the use of the word "resources," rather than a more narrow term, such as "income" or "salary," we believe that the legislature intended that the trial court consider all the money or property to which a parent has access. This may include that parent's income, her property and investment holdings, as well as money or property that could be available to her through her new spouse.


You MUST read the supporting case law to determine what is happening in such a situation. In the above case, there is no new law being written.

In fact, the issues that everyone is discussing here have been decided by Illinois statute and severl preceeding cases cited in re: Drysch.

The Real reason this decision was overturned and remanded had nothing whatsoever to do with the inclusion of spousal income, as everyone seems to think, but based on the lower court including the relationship between father and son as a determining factor in it's decision.

Accordingly, we believe that the trial court erred in considering Mark's poor relationship with Adam in entering its order. As we cannot ascertain from the record how much weight the trial court placed on this improper factor, we reverse its May 25, 1999, order and remand for further proceedings not inconsistent with the opinions expressed herein.
 

Tunie

Member
Good analysis, Belize. I knew someone here would cut to the chase and help me clarify what I was reading. I tried to find some back info on this but was unable to locate any with my limited knowledge of researching case law.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
Top