San Jose Family Law

By: David M. Siegel

Increase Denied

Trial court properly denied petitioner's request for increased child support. Modification of support is required where there is a substantial imbalance between the supporting parent's capabilities and the child's needs. Where there was sufficient evidence to justify the finding that, since the entry of the original divorce decree, the needs of the defendant's children had increased materially, and the evidence also sustained a finding that defendant was able to pay an increased amount of child support, trial court findings that defendant should pay increased child support was not contrary to the manifest weight of the evidence.

Increase in Child Support

Trial court abused its discretion in failing to comply with 750 ILCS 5/510(a) and 750 ILCS 5/513 of the Marriage and Dissolution of Marriage Act, 750 ILCS 5/510(a) and 750 ILCS/ 5/513, before extending the termination date of a support order to provide child support for an 18 year old until his graduation from high school. The trial court did not abuse its discretion in increasing the amount of child support where the children had grown older and, thus, the court could presume their needs increased, ex-wife testified that as the children were older, they became more involved in school activities, thereby increasing their expenses, husband's financial affidavits indicated he was making a higher salary than he did at the time of dissolution and this was not contradicted, and ex-wife was not making much more money and testified she needed the child support in order to make ends meet.

Petitioner clearly established both increased expenses for her daughters and respondent's increased ability to support them; hence, the appellate court found an abuse of discretion in the circuit court's dismissal of petitioner's petition for modification and found that the record supported an increase in child support in an amount calculated pursuant to 750 ILCS 5/505(a).

Minimum Support Guidelines

The guidelines for minimum support in 750 ILCS 5/505 are to be used when considering the modification of a support judgment.

In General

Parties cannot agree to make child support nonmodifiable; child support is modifiable even when combined with nonmodifiable alimony or maintenance. Unlike other final orders, a decree of child support is always modifiable. When a supporting spouse's financial condition improves notably, where there is a discussion suggesting that increases should be made, child support payments may be required to be increased, even though there is no showing that the child's or children's needs have increased specifically where the original support payments did not adequately meet the children's needs. The proper issue before the trial court on a motion to modify child support payments was whether the circumstances of the parties and the children had materially changed since the divorce decree and only if these circumstances have changed since the time of the original decree would a modification of the child support be proper. The modification of child support payments is a judicial function which is to be administered solely by the court and at its discretion. For a case discussing modification of payments for children's education.

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