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I am already paying child support to the mother of my first child. Now I have a second child by my new girlfriend. How does the Illinois Court decide how much child support I should pay?
The Illinois law of child support provides that the first family comes first.
A father in Illinois may be ordered by a divorce judge or paternity judge to pay child support. In calculating the amount of child support, Illinois courts look first to the father's or payor’s net income.
(3) "Net income" is defined as the total of all income from all sources, minus the following deductions: ... (g) Prior obligations of support or maintenance actually paid pursuant to a court order. [(750 ILCS 5/505(a)(3)(g); 750 ILCS 5/505 (750 ILCS 5/505), from Ch. 40, par. 505), Sec. 505. Child support; contempt; penalties.]
In the typical case, the first mother obtains a court order for child support and begins receiving child support. The first mother is "first in time." The first mother does not have her child support reduced because the father of her child has had a second child. Therefore, for example, the first mother receives child support of 20 percent of the net income of the father which is $40,000 a year. She therefore receives $8,000 a year in child support.
The second mother who is "second in time" is not so lucky; the father is able to deduct the child support he pays the first mother to arrive at his net income. Instead of 20 percent of the father's net income of $40,000, the second mother receives 20 percent of $32,000 or $6,400 because of the first mother's child support deduction.
What About payments to the First Mother for Maintenance?
Under the new Illinois child support law changes which took effect January 1, 2016, "maintenance "is now part of the prior obligation that must be deducted from a father's income.
In a case where the father is married, and upon divorce he is ordered to pay his now ex-wife $15,000 per year in maintenance, the maintenance must be deducted to set his "net income."
So in our example, when the ex-husband has a gross income of $40,000 per year, but pays $15,000 per year in maintenance if he then becomes a father, his net child support income is $40,000 minus $15,000 maintenance, which equals $25,000. The mother of his first child receives 20 percent of $25,000 or child support of $5,000 per year.
And, it just gets worse. If the father in the first family has children, pays child support, and also pays maintenance, then the second baby mama receives even less child support since the child support and maintenance are deducted to determine his net income. An example would be $40,000 minus $15,000 per year maintenance and $8,000 in child support for the first family—the second family receives $3,400 per year in child support.
Is There a Race to the Court in Illinois to See Which Family Files First in Order to be First in Time?
So, what happens when the second family gets its support or maintenance order in place before the first family? Does the first family receive less child support than the second family just because the first family was slow to get to court?
The answer is "NO."
The "prior obligations of support or maintenance" language "refers to the obligations to a family that is 'first in time' in relation to another family." See In Re: Marriage of Potts, 297 Ill.App.3d 110, 696 N.E.2d 1263, 231 Ill.Dec. 692 (2d Dist., 1998).
In re: Marriage of Zukausky , 244 Ill.App.3d 614, 613 N.E.2d 394, 184 Ill.Dec. 367 (2d Dist., 1993), "A divorced spouse's obligations to the first family must be met before the obligations to the second family can or will be considered.” In Re Marriage of Potts, 696 N.E.2d 1263, 297 Ill. App. ... Opinion for In Re Marriage of Potts, 696 N.E.2d 1263, 297 Ill. App. 3d 110, 231 Ill. Dec. 692
However, if the husband/father does not divorce his first wife, then the second mother, gets the full amount of child support. In our example, $40,000 net income x 20 percent = $8,000 per year child support—less money for the loyal wife and children.
So, we have arrived at the possibility of a husband who has been married for years to his wife, and he has three children, but now he becomes the father of another child by his girlfriend. The girlfriend/mother obtains a child support order—in our example $8,000 a year.
When the girlfriend gets child support, does the wife then want to divorce the straying husband just to be granted maintenance and child support in order to hurt the girlfriend and reduce her child support? Don't think it doesn't happen! It sure does.
Life is never simple. In the practice of family law, experience helps. Many of the situations that you would think are just hypothetical, really happen. When you encounter just such a novel situation, it is best to get yourself a very experienced Hinsdale divorce and family law lawyer. Our attorneys at Martoccio & Martoccio have had many years of dealing with unique questions of law and circumstances. Call us today at 630-920-8855 for a free consultation. We would be glad to discuss your case.