At the present time the Illinois divorce statute and case law is firmly based on the “percentage of income” model of establishing the child support payment a non-custodial parent is to pay. For example if the married couple have one child the statute calls for payments to be based on 20% of the non-custodial parent’s net income. An issue that often arises in the course of a divorce (or for that matter after the divorce is finalized) is that the non-custodial parent spends more time with custody of the child than the parent with who the child resides.

Example – after the divorce mother (who has custody) is transferred to the second shift at work. She sees the child off to school at 8am on Monday. She picks up the child from school at 3pm and drops off the child to some form of after-school program. Father, who leaves work at 5pm, picks the child up from the after-school program. Child stays with father. Next morning father takes to school and this continues to Friday when mother picks up for weekend.

The above extreme example often elicits a question from father – “why am I still paying the full child support to her if I have custody most of the time and take care of my kid?” A fair question. However, Illinois courts do not apply a sharing principal as to the payment of child support. Thus there would not be a basis for let’s say a 80/20, or some such other accommodation, to better reflect the financial realities of this situation. Unless a court would agree that a change of custody is called for there would be no recourse. Under those circumstances a petition to change custody would be the only way to address the issue (unless the parties could come to some sort of agreement – and even then said agreement would need to be presented to the court as agreed and made a part of the court record for protection of both parties).