The newsletter of the ISBA's Section on Child Law
August 2013, vol. 26, no. 1
Retroactivity of child support
It is very common to hear an attorney state that child support can be awarded retroactive to the date of filing a petition asking for support, but is this an accurate summation of the law? It most certainly is not. And, quite to the contrary, there are many avenues that can lead to a retroactive award of child support. This article will attempt to present a brief glimpse of a few situations that would allow a retroactive award.
Parentage Cases
The Parentage Act states that "the Court may order any child support payments to be made for a period prior to the commencement of the action." 750 ILCS 45/14(b) (requiring that support be ordered back at least as far as the service of summons). The court has consistently held that an award of retroactive child support is perfectly reasonable, and has extended children's rights to such awards to apply from date of birth to beyond the date of maturity. Janssen v. Turner, 292 Ill.App.3d 219 (4th District, 1997); People ex rel. Greene v. Young, 367 Ill.App.3d 211 (4th Dist 2006). In addition, when considering retroactive child support to children's birth, 750 ILCS 45/14(b) further specifies that there is a rebuttable presumption that the father's current net income at the time of the order is the same as his prior net income, and the Court should follow this standard.
Divorce Cases
When the original Judgment of Dissolution is silent on the matter of child support, a subsequent child support award may provide for retroactive support. See Gill v. Gill, 56 Ill.2d 139 (1973) (where the original proceedings were in rem, the divorce decree reserved jurisdiction to order support, and the court later acquired personal jurisdiction over the payor); In re Marriage of Cuberly, 135 Ill.App.3d 55 (5th Dist. 1985) (where the original proceedings were in rem, the divorce decree was completely silent on the issue of child support, and the court later acquired personal jurisdiction over the payor); cf. Nerini v. Nerini, 140 Ill.App.3d 848 (2nd Dist. 1986) (retroactive or "equitable" support not allowed where there was personal jurisdiction in the original proceedings, and the court expressly retained jurisdiction over the issue of child support); Conner v. Watkins, 158 Ill.App.3d 759 (4th Dist. 1987). When a court is able to make a retroactive award, once personal jurisdiction of the payor is acquired, there is a rebuttable presumption about his income:
(4.5) In a proceeding for child support following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the supporting party's net income for the prior period was the same as his or her net income at the time the order for current support is entered.
750 ILCS 5/505/(a)(4.5); see also 750 ILCS 20/24(3) (governing retroactive awards and presumptions of income under the Revised Uniform Reciprocal Enforcement of Support Act).
In a final decree of divorce, a court may provide for a retroactive child support award in order to make up the difference between what temporary support was paid and what temporary support should have been pursuant to the statutory guidelines. In re Marriage of Toole, 273 Ill.App.3d 607 (2nd Dist. 1995) (ordering a retroactive amount of $22,000, as being the difference of the statutory guideline amount and the amount that was paid on a temporary basis).
When There is a Duty to Report Income
The public policy that child-support obligors support their children in accordance with their ability to pay, is supported by the requirement, found in several statutes, for obligors to report changes in their employment and/or income. e.g., 750 ILCS 16/1 et seq.; 750 ILCS 45/1 et seq.; 750 ILCS 28/45. In fact, the failure to report such changes can be the basis for contempt. See 750 ILCS 16/20(f); 750 ILCS 45/15. Courts have made child support modifications retroactive for the reason that the obligors failed to report employment changes. See People ex rel. Greene v. Young, 367 Ill.App.3d 211 (4th Dist. 2006) ("our decision is based on our conclusion that it would be 'absurd to believe the legislature intended to permit someone such as [Robert] to disregard direct court orders and thereby to escape his' duty to support his child."); People ex rel. Williams v. Williams, 191 Ill.App.3d 311 (4th Dist. 1989). The Greene court stated:
We find it important that it was not Candice's responsibility to continuously bring Robert into court to check on his employment status. To require her to do so would have been inconvenient, expensive, and waste of judicial resources....Both Illinois' public policy and the May 1988 order put the onus on Robert to report a change in his employment status so that he would be required to support his child. Candice alleged Robert failed to report the change in his employment status upon gaining employment. If true, Robert directly disregarded the court's May 1988 order and violated the public policy of this state. We conclude that under these circumstances, a 'circuit court is not statutorily barred from imposing a retroactive child[-]support obligation upon a respondent in an ongoing child[-]support proceeding who, contrary to the court's directive, has failed to inform the court of his having resumed employment.'...We recognize that under normal circumstances '[s]upport may be modified only as to installments accruing after the nonmoving party has been notified that a motion to modify has been filed and only upon a showing of a substantial change in circumstances' [citation omitted]. However, the facts of this case are extraordinary. As stated, a circuit court may impose a retroactive child-support obligation upon a respondent in an ongoing child-support proceeding when a respondent has failed to inform the court of his having resumed employment as required by court order.
Greene v. Young, 367 Ill.App.3d 211 (4th Dist. 2006) (quoting Williams, 191 Ill.App.3d at 317; In re Marriage of Zukausky, 244 Ill.App.3d 614 (2nd Dist. 1993)).
Conclusion
As with a lot of other issues in the law, the possibility of a retroactive child support award is not something that can be summed up in a quick sentence or two, nonchalantly delivered to clients. On the contrary, the correct answer is a quick "maybe," followed up by one question after another question, in an effort to get down the particular facts of the matter so that you can give the client an accurate answer. Hopefully, this short article was able to point out some of the circumstances that should raise red flags when speaking with clients. ■
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