Written by Admin | Mar 14, 2018 5:00:00 AM
CHICAGOLAWBULLETIN.COM WEDNESDAY, MARCH 14, 2018 ® Volume 164, No. 51 Serving Chicago’s legal community for 163 years Attorneys need to be on their toes with changing IMDMA calculations W ith the whirlwind trial court’s ruling, but the hus- encounter with the continuing of recent amend- band specifically appealed the MODERN FAMILY evolution of the support laws. ments to the Illi- co u r t’s child support arrearage Prior to 2016, child support was nois Marriage and calculation on the ground that it calculated using a percentage Dissolution of improperly failed to apply the guideline approach on the support Marriage Act, which have been 2016 amended statute. o b l i go r ’s net income. The obligor rolling out on an almost semian- The 2016 amendments required MICHELLE would pay 20 percent of his or her nual basis since Jan. 1, 2016, and that maintenance paid from one A. net income for one child; 28 per- the upcoming changes to the In- party to the other be deducted LAW L E S S cent for two children; 32 percent ternal Revenue Code, which will from the payor’s gross income be- for three children; and 40 percent eliminate the income tax deduc- fore calculating child support. for four children. tion for maintenance beginning on The appellate court cited Sec- Then, beginning Jan. 1, 2016, Michelle A. Lawless is a partner at Schiller, Jan. 1, divorce practitioners are tion 801 of the amended marriage DuCanto & Fleck LLP whose practice while the guideline percentages currently in the midst of having to act in its ruling: concentrates on valuations of closely held remained intact under the over- constantly readjust maintenance “The new act is a comprehen- businesses, tax and estate planning matters, haul to the divorce statute, Sec- and child support calculations to sive reworking of the act and con- custodial and support arrangements for tion (g-5) was added to Section minor children as well as multistate keep pace with the various tains, among other things, a pro- 505 which required the deduction jurisdictional disputes. She works with each amendments. vision adopting and amending client to find individualized solutions, of maintenance when calculating But in the recent case of In re [S]ection 801 of the act. That sec- whether that is through collaborative the support payor’s net income. Marriage of Benink, 2018 IL App tion provides as follows regarding settlement or traditional litigation. She can This resulted in a significant (2d) 170175, the 2nd District Ap- the new act’s applicability: be reached at mlawless@sdflaw.com. change in the calculation as main- pellate Court has noted that there “(a) This act applies to all pro- tenance was now required to be is still a small subset of cases that ceedings commenced on or after child support obligation was not calculated first under Section 504 are required to be adjudicated un- its effective date. an “issue on which judgment had of the marriage act so that the der the pre-2016 amendments. “(b) This act applies to all pend- not been entered.” deduction would be included In the Beninkmatter, pursuant ing actions and proceedings com- The court held that the 2010 when applying the guideline per- to the parties’2010 judgment for menced prior to its effective date judgment of dissolution incorporat- centage to calculate child support. dissolution of marriage, the hus- with respect to issues on which a ed the parties’marital settlement Thereafter, 18 months later, on band paid the wife $72,000 per judgment has not been entered. agreement which contained provi- July 1, 2017, the child support year in maintenance, $2,431 in bi- “(c) This act applies to all pro- sions establishing husband’s child statute received the most signif- weekly child support and 40 per- ceedings commenced after its ef- support obligation and, therefore, a icant overhaul to date when it cent of any additional income fective date for the modification of judgment had been entered on the completely eliminated the guide- earned as child support and as a judgment or order entered prior issue of child support. line percentage approach and calculated by the minimum guide- to the effective date of this act.” However, because the parties’ moved to an income-shares model lines set forth in Section 505 of 750 ILCS 5/801. post-judgment motions sought a that takes into account both par- the marriage act. ents’incomes and the allocation of In 2013, both parties filed com- parenting time between the par- The B enink case underscores the challenges peting motions to modify child ties, among several other factors, support. The wife sought to in- divorce practitioners have been and will including maintenance paid from crease support on the basis that one party to the other. the husband was earning substan- continue to encounter with the continuing The Beninkcase, which does tially more than at the time of the not even address the income evolution of the support laws. divorce, and the husband sought shares model because that version to decrease support on the basis of the statute was not in effect that some of the children were no The trial court applied Subsec- modification of the prior judg- when the case was tried, under- longer minors. tion (b) of the statute because the ment, they plainly fell within Sub- scores the importance of under- The trial on this matter did not parties’petitions seeking a mod- section (c) of the statute. Subsec- standing the specific amendments occur until 2016, after the sweep- ification of the child support set tion (c) only applies to modifica- to the statute. ing amendments to the marriage forth in their 2010 judgment for tion proceedings commenced after Divorce practitioners should act were in place. dissolution of marriage were Jan. 1, 2016, and since the parties closely evaluate which statute will In its ruling, the trial court per- pending on the effective date of had filed their modification peti- apply to their clients’matters in a formed a number of calculations the new statute. tions in 2013, the amended statute post-judgment modification pro- which resulted in an order requir- However, the appellate court (as of 2016) did not apply. ceeding given that several ver- ing the husband to pay the wife an held that this reading is contrary The Beninkcase underscores sions of the child support and arrearage of $150,000. Both par- to the plain language of the the challenges divorce practition- maintenance statute have been in ties appealed various parts of the statute because the husband’s ers have been and will continue to effect since 2016. Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.