Can Child Support and Spousal Support be Changed After a Divorce is Final?

It’s a good idea to check with your lawyer every few years and ask the attorney to investigate the possibility of a modification in child support or maintenance.  

By Jay A. Frank Updated: May 06, 2020Categories: Financial Issues, Life After Divorce

The answer is “yes”.

First, let’s look at child support.

Can Child Support and Spousal Support be Changed After a Divorce is Final?

Child Support

Illinois divorce law provides that the amount of child support can be changed, up or down, after the case has been finalized.  In fact, this can happen any number of times until the obligation to pay child support is eliminated.

Child support is payable to age 18 or completion of high school, but not past age 19.  In order to change child support, a party must file a petition with the court and send notice to the other party.  The court will then have jurisdiction to modify the child support payments in the future, starting with the date that the petition was filed.  Child support payments that were due before the filing of the petition cannot be modified.

In order to increase or decrease the payments, the party filing the petition must be able to show “a substantial change in circumstances”.  Generally, this requires a change in the financial circumstances of one of the parties.  The most common situations deal with fluctuations in income.

For example, the party receiving the child support (and let’s assume that this would be the ex-wife or the mother) could lose her employment and therefore have fewer funds available for support of the children.  She would then file a petition for an increase in support.  Or, but more rarely, the mother could obtain a new job at a much higher salary than before.  In this case, she would have more funds available for support of the children and the other party (again, let’s assume that this would be the ex-husband or the father) could then file a petition seeking a decrease in support.

On the other hand, the father could lose his employment or, alternatively, find another job with a much higher salary.  In the first situation, the father would file a petition to reduce support because he no longer has the income available to fund the support payments.  In the second situation, the mother could file a petition to increase the child support as the father now has more funds available.

Another common scenario is where the father remarries, and the new spouse enjoys a high paying job.  While the new spouse’s income cannot be counted for child support purposes, Illinois courts have held that her income frees up some of the father’s income as it is no longer needed for expenses.  Therefore, the father has more available income for child support, and the mother could file her petition for an increase on these grounds.

There are even situations where the court will increase the father’s child support payments even though there has been no change in his income or in mother’s income.  Where the children are older, and their expenses have increased, some courts have awarded an increase in child support even though the income of the parties has remained the same.

Lastly, even if there is a decrease or loss of income, that doesn’t automatically mean the support paid by that ex-spouse will be reduced.  This is because the court has the discretion to order support to be paid, in whole or in part, from that ex-spouse’s assets and property.  So, even though the income has decreased, the court can refuse to reduce the support if the ex-spouse has sufficient assets and property from which the payments can be made.

Spousal Support

Now, let’s turn to maintenance.  This is support for the ex-spouse (as opposed to the child) and used to be called alimony.  Again, the most frequent situation is a change in income or ability to make the payments.  The rules here are much the same as discussed above with regard to modifying child support.  That is to say, there must be “a substantial change in circumstances” and a court petition has to be filed.  The court also applies essentially the same reasoning as used in child support cases.

There are two notable differences from the child support scenario.  By Illinois law, the obligation to pay maintenance ends at the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a “resident, continuing, conjugal basis” (i.e., live together as husband and wife). So, if one of these situations occurs, then a court petition should be filed, and the maintenance will be terminated.

Second, if the case ends with a settlement, the parties can agree in the settlement paperwork that the maintenance payments cannot be modified in the future for any reason whatsoever.  This type of agreement is valid and binding.

It’s a good idea to check with your lawyer every few years and ask the attorney to investigate the possibility of a modification in child support or maintenance.  In fact, if your financial circumstances have changed, or you learn that the financial circumstances of your ex-spouse have changed, then prompt follow up with your lawyer is advisable.