An Unemployed or Underemployed Parent’s Child Support Obligations

 Posted on December 11, 2014 in Divorce

The duty to pay child support stems from the child’s needs as well as the parent’s ability to pay. The second part of that equation depends on the supporting parent’s financial resources and needs. In other words, it is difficult to order parents to pay beyond their means. But what do such “means” include? Two years ago the Illinois Supreme Court considered whether money regularly drawn from a savings account is considered income for child support purposes.

The case, In re Marriage of McGrath, involved a divorcing couple with two children. Their marriage settlement included a joint parenting agreement granting physical custody to the mother. Because the father was unemployed, the initial agreement did not require him to pay child support. Eventually, however, the mother filed a petition seeking support payments. At the time, the father was covering his own living expenses by making withdrawals from his savings account. The court found that those withdrawals constituted his net income and used that amount to calculate his support obligations.

Savings Account Withdrawals Do Not Constitute Income

The father appealed this decision, but the appellate court affirmed, ruling that unemployment does not absolve a parent – who is living off of regularly liquidated assets – of his child support responsibilities. The father appealed again, this time to the Illinois Supreme Court, which disagreed with the lower court decisions. The court applied the ordinary definition of “income,” which includes salaries, investments, royalties and gifts but does not include money that already belongs to him. In other words, the savings account did not constitute income because it did not create a monetary gain.

So if savings account withdrawals do not constitute income for child support purposes, how can a court establish a child support order against an unemployed parent?

Imputing Income

In some cases, Illinois courts will impute income to the noncustodial parent. In other words, courts will assume that the parent makes a certain amount of money, even if he is unemployed or earns less than that amount. A court is likely to impute income when the noncustodial parent acts in bad faith. For example, if the parent:

• Is voluntarily unemployed;
• Is attempting to evade a child support obligation; or
• Has unreasonably failed to take advantage of an employment opportunity.

In those situations, the court will calculate income based on what the parent could have earned. Of course, if the parent is unemployed or underemployed the issue then becomes how to collect support payments.

Illinois has mechanisms in place for collecting child support from deadbeat parents (parents who unlawfully evade support obligations) as well as from unemployed or underemployed parents who simply cannot afford to make payments. For example, the state may collect a percentage of unemployment benefits and require the parent to participate in career counseling services.

If your family relies on child support payments that are not being paid on time, contact one of ourexperienced Kane County family law attorneys today. We can help enforce your child support order. Conversely, if you can no longer afford to make your payments, we can petition to change your obligations. We can assist those in the St. Charles area.