The court orders in a finalized divorce set legal guidelines for spousal maintenance, child custody, and child support. Whether the ex-spouses went through court litigation or mediation, their separation agreements are court-enforced. However, these court orders are not immutable. Illinois courts recognize that life changes for every family and that court orders need to reflect those changes.
If both parties agree to the modification, they can make that change. The only parts of a divorce order that cannot be modified are the division of assets and a waiver of spousal maintenance. Parties can change spousal maintenance, child custody, and parenting time. However, if only one party wishes to change the court orders, Illinois courts require that they prove a substantial change in circumstances.
What Is a Substantial Change in Circumstances?
What is considered a substantial change in circumstances depends on which aspect of the agreement is being modified. A substantial change may include a change in employment, a relocation, or a child reaching the age of 18. If one party changes to a job with the same level of income, this may not be considered a substantial change for modification.
Spousal Maintenance Substantial Changes
Modification of spousal maintenance mostly depends on each party’s financial ability and income. Changes in income are the most common reason for modification, but these changes must be in good faith. A spouse who chooses to quit their job or voluntarily lowers their income will not qualify for a modification. Substantial changes to modify spousal maintenance in Illinois include:
- Change of either party’s employment status
- Change in either party’s income since the divorce was finalized
- Efforts by the spouse receiving maintenance payments to become self-supporting
- Tax consequences of spousal maintenance payments depend on each party’s economic situation
- A negative effect on either party’s current and future earning capacity
- Property acquired and owned by either party after the divorce was finalized
- Other factors the court considers to be equitably substantial
If the spouse who is paying for maintenance receives an increase in income, the payments may increase. Alternatively, the payments may decrease if the receiving spouse has an increased income. The court may determine a new marriage or cohabitation to be a substantial change in circumstances depending on the unique situation.
Child Support Substantial Changes
In child support calculations, the goal is for the child or children to receive the same level of financial support they would have if the parents had remained together. Therefore, child support depends more on the needs of the child. A substantial change for a modification of child support orders may include the following:
- An income decrease or increase in the parent paying for child support
- An income increase of the parent receiving child support payments
- A significant change in the child’s needs, such as a disability or an increase in medical care
- The child is 18 and dropped out of or graduated high school
- The child is self-supporting and no longer lives with the parent receiving child support payments
- The child changes residence, such as moving in with or spending more time with the paying parent than the payments calculated for
- The child gets married or joins the military
- The child becomes emancipated
Parenting Time and Legal Decision-Making Substantial Changes
Unlike spousal maintenance and child support, substantial changes in parenting time and legal decision rights or parental responsibilities don’t depend on financial changes. Courts also prefer not to modify parental responsibilities unless there is a significant reason to. Often, this is because the court considers stability for the child to be in their interests. What is considered a substantial change to modify custody and parenting time includes:
- The custodial parent wishes to relocate with their child.
- The non-custodial parent wishes to relocate.
- Parents have been using a different system for parenting time and want to modify the official court order to match.
- One parent, especially the custodial parent, is no longer able to provide for the child’s physical, mental, and emotional needs.
- One parent has remarried or is cohabitating with a partner
- One parent has a substance use dependency disorder
- One parent is abusing the child or otherwise providing an unsafe environment.
- The child’s wishes for custody or parenting time have changed as they have gotten older.
The courts may also consider the parent’s abilities to work together on decisions to determine if sole decision-making should replace a joint decision-making court order.
Q: What Is An Example of a Substantial Change?
A: A substantial change may include an increase or decrease in income, a change in employment, a move by either parent, a change in the child’s wishes, or a change in the child’s medical or financial needs. Depending on what part of a divorce order you are petitioning to modify, the substantial changes required will be different.
Q: What Is a Substantial Change in Circumstances in Illinois Parenting Time?
A: If both parents agree on a change in parenting time, it can be made at any point. In Illinois, if a change in circumstances necessitates a change, parenting time can be modified if the court agrees that change is in the child’s interests. Modifying custody, or parental responsibility, requires more significant endangerment or a parent’s inability to care for a child.
Q: At What Age Can a Child Refuse To See a Parent in Illinois?
A: Once a child is 18, they can make their own legal decisions. Before the age of 18, the court will hear a child’s wishes when creating a parenting plan or assigning parental responsibility. However, they are not required to follow the child’s wishes. Above all, the court operates in the child’s interests, which are not the same as their wishes. Parenting time can be modified if the child’s wishes change as they get older. The closer a child is to 18, the more likely the court will follow their wishes.
Q: What Is a Material Change in Circumstances?
A: A material change in circumstances is the same as a substantial change in circumstances. It means that the current family court order no longer fits with the interests of the child or parents because of a change in finances or ability.
Modification of Court Orders in Chicago
Stange Law Firm can assist you in determining what changes are substantial and how to modify court orders in your family’s interests. Contact our team today.