child support 101/102 - The Gitlin Law Firm

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this Section. There are corresponding provisions in the Illinois Public Aid Code, the Non-Support of Spouse and Children Act, the Illinois Parentage Act of 1984 (§20.7) and the Code of Civil Procedure. For further information, see my separate handout titled “Interest on Child Support and Maintenance.” The only current issue (other than the complicated nature of how to calculate the interest), in these cases involves those with a historical arrearage and whether the provisions of this Act have a retroactive effect. IRMO Thompson, 829 N.E.2d 419, 357 Ill.App.3d 854, 293 Ill.Dec. 836 (Second Dist., 2005), addressed the issue of the entitlement to statutory interest. Understand that for the period prior to January 1, 2000, it is not clear whether statutory interest is mandatory. However, Thompson ruled that clearly the trial court does not err when it grants statutory interest prior to this date because the imposition of statutory interest has been permissive prior to this date (from the date of 1987 through 2000). 5. Public Act 90-476: "Discovering Hidden Assets" – Piercing the Ownership Veil in “Alter Ego” Type Cases §505(b) of IMDMA provides: If there is a unity of interest and ownership sufficient to render no financial separation between a non-custodial parent and another person or persons or business entity, the court may pierce the ownership veil of the person, persons, or business entity to discover assets of the noncustodial parent held in the name of that person, those persons or that business entity. The following circumstances are sufficient to authorize a court to order discovery of the assets of a person, persons, or business entity and to compel the application of any discovered assets toward payment on the judgment for support: (1) The non-custodial parent and the person or persons or business entity maintain records together. (2) The non-custodial parent and the person, persons or business entity fails to maintain an arms length relationship between themselves with regard to any assets. (3) The non-custodial parent transfers assets to the person, persons or business entity with the intent to perpetrate a fraud on the custodial parent. With respect to assets which are real property, no order entered under this paragraph shall effect the rights of bona fide purchasers, mortgagees, judgment creditors, or other lien holders who acquire their interest in the property prior to the time a notice of lis pendens pursuant to the Code or Civil Procedure or a copy of the order is placed of record in the office of the recorder of deeds for the county in which the real property is located. 750 ILCS 505(b). Comment: Also note that §12-112 of the Code of Civil Procedure was amended in order to Gitlin Law Firm, P.C. 1-8 www.gitlinlawfirm.com
effectuate the above provisions. The corresponding provisions of the Illinois Parentage Act of 1984 were also amended (§15(b)(2.5)). 6. Lien Provisions as to Overdue Suppor: IMDMA Provision: A new provision was added to 505(d), the final sentence of which now reads, “A lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue support owed by the noncustodial parent.” 750 ILCS 505(d). Comment: This language was necessary to permit the ability to garnish wages automatically pursuant to a notice for income withholding, as discussed below, and to allow a virtually automatic lien against real estate. Code Provision for Lien of Judgment Against Real Estate: Code Provisions Few family lawyers use the corresponding provisions of the Code at 735 ILCS 5/12-101. Assume an obligor owns a house and may be preparing to sell it. Using this approach could be a virtually no cost enforcement tool. A judgment resulting from the entry of an order requiring child support payments shall be a lien upon the real estate of the person obligated to make the child support payments, but shall not be enforceable in any county of this State until a transcript, certified copy, or memorandum of the lien is filed in the office of the recorder in the county in which the real estate is located. Any lien hereunder arising out of an order for support shall be a lien only as to and from the time that an installment or payment is due under the terms of the order. Further, the order for support shall not be a lien on real estate to the extent of payments made as evidenced by the records of the Clerk of the Circuit Court or State agency receiving payments pursuant to the order. In the event payments made pursuant to that order are not paid to the Clerk of the Circuit Court or a State agency, then each lien imposed by this Section may be released in the following manner: *** The procedure to record the memo of lien is remarkably easy. The scheme is to except payments as evidenced by the clerk’s records or the SDU. If the payments are not reflected in the clerk or SDU’s records, then the parent owing a duty of support will need to submit an affidavit consistent with the provisions of the Code and a specific notice with provide a proof of service. Accordingly, when using this approach, you generally will also want to require payments to be made through the SDU. The Code also states, “A judgment is not a lien on real estate for longer than 7 years from the time it is entered or revived, unless the judgment is revived within 7 years after its entry or last revival and a memorandum of judgment is filed before the expiration of the prior memorandum of judgment.” Liens Against Responsible Relatives: There are also provisions unique to the ability of the Illinois Department of Healthcare and Family Services (HFS) to impose liens against “responsible relatives.” In Martinez v. IDPA, (1 st Dist., 2004) the Illinois appellate court ruled that the provisions of the Gitlin Law Firm, P.C. 1-9 www.gitlinlawfirm.com
Page 1 and 2: CHILD SUPPORT 101/102 - STATUTORY A
Page 3 and 4: E. Depreciation and Business Expens
Page 5 and 6: shall state the amount of support t
Page 7: custodial parent was properly serve
Page 11 and 12: address of any new employer of the
Page 13 and 14: the validity of the order or the op
Page 15 and 16: 505(f) requires payor’s disclosur
Page 17 and 18: 25% of the health insurance premium
Page 19 and 20: Consider this provision in connecti
Page 21 and 22: whether the amendment applies retro
Page 23 and 24: 3. Withholding Notices Standard For
Page 25 and 26: “Each obligor (whether or not inc
Page 27 and 28: One issue was whether FICA payments
Page 29 and 30: 7,825 31,850-77,100 $4,386.25 + 25%
Page 31 and 32: stated: “The guidelines are a use
Page 33 and 34: . Reasonable and Necessary for Prod
Page 35 and 36: Per Diem Deduction for Business Exp
Page 37 and 38: parent bears the burden of proof, h
Page 39 and 40: [either (1)] reasonable and necessa
Page 41 and 42: the past three years of his previou
Page 43 and 44: The Supreme Court, however, allowed
Page 45 and 46: "Few, if any, sources of income are
Page 47 and 48: non-custodial parent in view of dis
Page 49 and 50: lavish life-styles." We have no qua
Page 51 and 52: court held that the trial court's o
Page 53 and 54: VI. Consideration of Income Tax Ref
Page 55 and 56: 238 Ill.Dec. 1013, 713 N.E.2d 259 (
Page 57 and 58: The Department’s arguments regard
Page 59 and 60:
IRMO Tegeler, 365 Ill. App. 3d 448,
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