As a divorce lawyer, I know well that getting back into the court system is not something most former clients are looking forward to. Unfortunately, there are certain things that if you delay in bringing the issue before the court, it could lead to long-term harm. Changes to child support and maintenance are two of those things.
I often confront the situation where someone lost there job or experienced a decrease in their income. Obviously, with the reduction in resources, it is not an ideal time to hire a lawyer to go to court. But, under Illinois law, child support and maintenance obligations can only be modified retroactive to the date on which a petition to modify them is filed. If the support obligor loses his or her job, but doesn’t bring a petition to modify, then they remain on the hook for the full amount of child support and maintenance, regardless of the actual level of income. Even more burdensome, if that person cannot pay due to the lack of income, they could find themselves subject to 9% interest on the unpaid amount and having to pay the other party’s attorney fees in a subsequent action to collect the support.
Much the same can apply when child support is supposed to terminate or maintenance or alimony is supposed to terminate. The failure to bring a petition timely can often result in the court treating overpayments as gifts. That means, even if child support or maintenance was supposed to be reduced or terminated, but payments were made for another six months or more, the court may not order the other side to reimburse the ill-gotten funds. There are some defenses, but once the other side has the money, it will be much harder to get it back. Even when you’re entitled to get it back, it is easy for a court to make recommendations that leave the parties where they are versus trying to get a lower-income former spouse to pay money back to the higher earner.
So, as I advise all of my clients, if you lost your job, find a way to get a petition for modification of support into the court. If there is a basis for modification or termination of child support or alimony, do it as soon as you can. Delay may literally cost you thousands of dollars extra.
For more help or information on obtaining a fair and equitable distribution of property in your McHenry County, Illinois divorce, please contact us.