It is one thing to get a child support order in Illinois. It is another thing to ensure the child support is paid. It is a further effort to ensure that the child support is paid in a timely manner. When child support is late, the payor or the payee must review the child support order to determine what (if any) penalties exist regarding late child support payments.
The amount of child support in Illinois is calculated based on the monthly incomes of the two parents.
“The court shall compute the basic child support obligation by taking the following steps:(A) determine each parent’s monthly net income;(B) add the parents’ monthly net incomes together to determine the combined monthly net income of the parents;(C) select the corresponding appropriate amount from the schedule of basic child support obligations based on the parties’ combined monthly net income and number of children of the parties; and(D) calculate each parent’s percentage share of the basic child support obligation.” 750 ILCS 5/505(A)(1.5)
It logically follows that the payment of child support would happen on a monthly basis as the amount of child support was calculated on a monthly basis. However, there is no statute or case law requiring a particular frequency for child support. Therefore, whenever an Illinois court order says child support is due…any payment thereafter shall be considered “late”
A child support order must specify an amount of support and a “periodic payment”
“Order for support” means any order of the court which provides for periodic payment of funds for the support of a child or maintenance of a spouse, whether temporary or final” 750 ILCS 28/15
The “periodic payment” is then usually made via the child support payor’s employer through an income withholding order. The withholding order almost always breaks down the child support owed in periodic payments equal to when the employee gets paid (most often, bi-weekly).
“[E]very order for support entered on or after July 1, 1997, shall…[r]equire an income withholding notice to be prepared and served immediately upon any payor of the obligor by the oblige unless a written agreement is reached between and signed by both parties providing for an alternative arrangement, approved and entered into the record by the court, which ensures payment of support.” 750 ILCS 28/20(a)(1)
Late child support is really a problem for the obligor parent’s employer.
“The failure of a payor, on more than one occasion, to pay amounts withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor creates a presumption that the payor knowingly failed to pay over the amounts.” 750 ILCS 28/35(a) (emphasis mine)
If an employer does not withhold and forward child support to a parent due child support, a penalty fee can be calculated and assessed against the employer.
“If the payor knowingly fails to withhold the amount designated in the income withholding notice or to pay any amount withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor, then the payor shall pay a penalty of $100 for each day that the amount designated in the income withholding notice (whether or not withheld by the payor) is not paid to the State Disbursement Unit after the period of 7 business days has expired.” 750 ILCS 28/35(a)
If the parties agreed to not withhold child support and, instead, to agreed to pay child support directly from parent-to-parent a late child support payment can be addressed via a motion to enforce or a petition for indirect contempt of court.
“A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced…by order of court pursuant to petition…Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” 750 ILCS 5/511
A motion to enforce means the late child support payor has the opportunity to present a motion to modify child support at the same hearing should they conceive of any “substantial change in circumstance” (they always do).
“An order for child support may be modified as follows… upon a showing of a substantial change in circumstance” 750 ILCS 5/510(a)
Late child support is usually brought to the court’s attention as a contempt matter, instead.
Contempt is “[t]he act of demeaning the court, preventing justice administration, or disobeying a sentence of the court.” Black’s Law Dictionary (11th ed. 2019)
“A court is vested with inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings.” People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d 700, 710 (1996).
Failure to pay child support on the date required by the order entered is indirect civil contempt.
“Indirect contempt occurs outside the presence of the court and must therefore be proved by extrinsic evidence. Where an element of the offense is not observed by the judge and must be proved by testimony from third parties, then the accused contemnor must be given notice, a fair hearing and an opportunity to be heard.” Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)
Late child support payors rarely get in trouble so long as they eventually pay the child support.
“[A] court in any civil contempt proceeding must allow the contemnor an opportunity to purge his contempt. The purging provision in any civil contempt sanction for nonpayment must be based on the contemnor’s ability to pay.” In re Marriage of Dunseth, 260 Ill. App. 3d 816, 828 (Ill. App. Ct. 1994)(citations omitted)
Illinois divorce courts do not really care when child support is paid…so long as child support is paid eventually.
“[A] spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered.” Finley v. Finley, 410 NE 2d 12 – Ill: Supreme Court 1980
The only real penalty is the possibility of requiring the late child support payor to pay interest.
“A decree of divorce that provides for weekly payments for support and maintenance for the children is a money decree and draws interest at the rate of 5% per annum until satisfied.” Gregory v. Gregory, 202 NE 2d 139 – Ill: Appellate Court, 5th Dist. 1964
At 5% interest, a $ 2000 child support payment would accrue $ 10 interest after being a month late. A $ 1000 child support payment would accrue $ 5 interest after being a month late. A $ 500 child support payment would accrue $ 2.50 interest after being a month late.
The only way to effectively punish a late child support payor is to ask for attorney’s fees related to collecting the late child support.
“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees.” 750 ILCS 5/508
If the lateness is so pervasive, the court may even authorize putting the late child support payor’s assets in trust to ensure regular future payments.
‘The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent or incompetent child of the parties.’ 750 ILCS 5/503(g)
“A need for such protection arises when the obligor spouse is either unwilling or unable to make child support payments. [Citations.]” In re Marriage of Popa & Garcia, 2013 IL App (1st) 130818, ¶ 23, citing In re Marriage of Steffen, 253 Ill. App. 3d 966, 969 (1993)
Late child support payments are annoying at best and financially devastating at worst. Quit putting up with bad behavior and insist that child support payments be tendered promptly via a withholding order or a punitive motion. Contact my Chicago, Illinois family law firm today to discuss your late child support payments with an experienced Illinois divorce attorney.