Why all money isn't the same under Illinois divorce law. The label matters!

Divorce cases in Illinois may have both a child support component and a maintenance (spousal support, sometimes known as 'alimony') component. You might think that it doesn't matter what you call it, so long as a dollar amount is agreed upon. After all, money is money, so who cares what it is called, right? Not so fast. Under Illinois law, it matters!

Child Support is always modifiable

Unless there is a reason to deviate from the formula, Illinois courts will require a percentage of net income to be paid for child support, based on the earnings of the parent who is paying the support. Unless the children are nearing the age of majority at the time of divorce, it is likely that child support will change over the course of years. It is not at all uncommon for the supporting parent to return to court to ask for a reduction in child support, after the divorce. The court will grant this if convinced that there has been a "substantial change in circumstance" which usually means that someone is earning  less money than they were. On the flip side, the parent on the receiving end of child support can ask for more money if the other parent is now making significanly more money than they were at the time of the divorce, which is why your divorce decree should require annual updates (at least) of income information from the other parent, if you are receiving support. 

Maintenance is not always modifiable

Under Illinois law, spousal support (maintenance) can also be changed upon showing of a substantial change in circumstances unless at the time of the divorce it is provided that maintenance be non-modifiable either as to the amount of money or the duration of time. So, if someone is worried that the amount of maintenance they receive will be reduced after the divorce, a clause for non-modifiability should be considered to ensure that the person paying cannot return to court to ask that the support be lowered. 

Calling it maintenance or child support: why it matters

By way of example as to why this could matter, let's take the example of a husband who is ordered to pay child support and maintenance.  If he is only paying child support, either party can return to court to have the amount adjusted later on if he is making quite a bit more or quite a bit less. That is fair and it makes sense. If he is paying maintenance and the divorce decree says that it is not modifiable, he is stuck where he is at. This could be a double edged sword and work either way.  You should discuss with your attorney the specifics of your situation. For instance, is the person paying self-employed with the ability to control (to an extent) his or her own income? Would he or she use this to gain an unfair  advantage after your divorce? 

Tax Consequences

There are also tax consequences to consider. Mainteance is tax deductible to the person paying it, and the person receiving it has to pay tax on it. Child support isn't either tax deductible nor does it add to ones taxes if receiving it.

As always, what is best for you will depend on the circumstances of your Illinois divorce but it should be clear that while support should be called what it is, pay attention to the labels that are put upon it as it could matter very much down the road. 



Carol O'Connor Cadiz
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Attorney & Owner at O'Connor Cadiz Law: Bankruptcy, Injury, Real Estate & Mediation