Child Support

David Siegel: Let's move on to support. The person who has physical custody of the child on a day-to-day basis is entitled to child support.

Jesse Barrientes: That's correct.

David Siegel: How does that work? Is it in terms of percentages? Is it in terms of dollar amounts? How long does it last? Elaborate on child support, if you would.

Jesse Barrientes: Child support is the right of the child and you can't wave it. It can be reserved, however, under certain circumstances, and we'll talk about those in a moment. Generally in Illinois we have the guideline for child support. For 1 child, it's 20 percent of the net income. For 2 children it's 28, 32, and it goes on.

David Siegel: That income is income from all sources, is that correct?

Jesse Barrientes: Income from all sources except you get to deduct taxes. You get to deduct union dues. You get to deduct insurance premium payments, and that includes dental, health. It includes life insurance. You get to also deduct any mandatory pension.

David Siegel: Must be mandatory.

Jesse Barrientes: Must be mandatory. You get to deduct expenditures for the necessary production of income, and that gets a little hazy depending upon what that is.

David Siegel: Very importantly it's out of the net, not out of the gross.

Jesse Barrientes: Out of the net, right, and by the way, just so the people at home know, it doesn't mean that you go to your employer and you take out more or less exemptions so – most Joliet divorce attorneys, matrimony attorneys have a program, and they put the numbers in. What it does is it calculates what it should be despite what you put in in terms of what you're taking out in those taxes. It can falsely deflate your income.

David Siegel: That tax calculator is also available online for free, so people can look in to that if they want to know if their spouse is taking out the proper taxes out of their check.

Jesse Barrientes: Sure. Then you have a choice to get the child support paid either directly to the individual. In other words, I give you a check. I pay you directly, or it can be taken out of my check for a notice of withholding and paid directly to you, or it can be taken out of my check and paid to the state disbursement unit, and processed, and then paid to you. If you do that last step, there's a small administrator fee I think. It's like 30, $35.00 a year for that to happen. I would recommend everybody that you keep a spreadsheet, that you keep check stubs, and make a record of it, because the state disbursement unit, a lot of times those records are not accurate, and if there's a problem in the future, you want to be able to prove what you paid, and when you paid it.

David Siegel: Wait a minute. The government agency that's set up to collect the child support and distribute it, how are their records inaccurate?

Jesse Barrientes: I've found that they're not always accurate in terms of the specific amount that's owed and in terms of maybe missing some kind of payments. They're generally okay, but if we're talking about a huge amount of a rearage, you want to make pretty sure that that's exactly what it is, and the only way to do that is looking either at their records, or if you've got the hard data, your copies of your checks, and your own spreadsheet as you're going along to do that. It's going to make things a whole lot easier.

David Siegel: I always recommend to go through the SDU. That way you don't have to depend upon your ex-spouse to decide when he or she is going to forward the child support. It's going to be extracted right out of their pay, sent to the state disbursement unit, then to the recipient, so it's always a good idea. Accounting or otherwise, you know if that person's working, you're going to be getting your child support, which is needed. That's support for the child. It's not support for the spouse. It's for the child.

Jesse Barrientes: Some people have a different idea in terms of that. Some people are okay with that. They don't mind paying because they understand it's their duty to provide for their children. Some people also, as long as we're talking about that, have an idea that if it's for the children, I want an accounting of everything that you bought for the children, and if it doesn't total what I'm giving you, I'm not giving you that. That doesn't work like that. It's for the food. It's for the roof over their head. It's for mortgage if there's a mortgage payment. They know it's for the utilities, for all those other kinds of things, so there's no accounting for that. I mentioned that sometimes you can reserve child support. You can't waive it, but you can reserve it, and what that means is we're not getting child support. There has to be a reason for that.

David Siegel: What would be a good reason for someone to reserve child support?

Jesse Barrientes: Well one reason that's common is that somebody isn't employed, so generally the court will make them go out and keep a job diary, and come back and report to the court. Another reason may be that during our division of property. We talked in our last show, for example, about the house, and whatever percentage somebody's going to get. If say maybe there was equity in the house, and I just said – $100,000.00 in equity, and I said, "Here. I'm going to give you the house with all of the equity, as long as you get it out of my name, and in consideration for that, we're going to reserve child support." But you have to draft it very specific.

David Siegel: The court wants to be careful that the child or children are provided for.

Jesse Barrientes: Are provided for, and are taken care of, exactly.

David Siegel: That clause, there's no telling what that person's going to do with the equity, whether they're going to use it for support or not.

Jesse Barrientes: That's a reason for—

David Siegel: The reservation.

Jesse Barrientes: For reservation, and that's why it's important to draft. We're talking about drafting this agreement. It's important to be very specific in there, because what happens then if you do that and the other person comes in for child support? You better be sure that the language is very clear that what you've done, and what your income was, and all that. Another thing that can happen is remember the guidelines we were talking about, the 20 percent, the 28 percent?

David Siegel: Yes. I was going to ask you about guidelines and whether or not they can be deviated from.

Jesse Barrientes: Right, and they can be deviated. This is another good example of how they can be deviated from. Let's say kind of similar example, that there's a joint bank account, and we have maybe $20,000.00 in it, and it's going to be split.

David Siegel: Equally?

Jesse Barrientes: Equally, so there's $10,000.00. We're kind of figuring how much I make, what my net is, and what the difference is, and so we say in there specifically that it's deviating from this amount because she's receiving additional monies. There's another reason, and actually I just dealt with this not so long ago, where they had joint custody, but during the summer, the whole summer months, the three summer months, the children were going to live with the father. He wasn't going to pay child support for that time because the kids are there, and they negotiated it, and they agreed, so what we had to do was figure out how much those three months of child support translate to, and we figured that out, then we deducted it proportionate to the rest of it.

David Siegel: Or just take 9 months of child support and divide that by 12 to come up with what the monthly amount should be.

Jesse Barrientes: But then you have to specify in the judgment and the support order why there's a deviation, and as long as there's a good reason, like some of those things, the judges are generally inclined to go along with it.

David Siegel: Right. The other reason would be for a deviation is if you have a bread winner who's making an excessive amount of money. The guideline percentage for support would yield an amount that is way too much, or way more than what is required. For example, an athlete that makes 2 million a year, 20 percent of that net would be an exorbitant amount, and the court would not require that athlete to pay the 20 percent.

Jesse Barrientes: Most likely not, however I can tell you that the court is going to want the children to share in the wealth of that parent, so again, we talk about best interests. It might not be 20 percent of that 2 million, but it's not going to be just the bottom line kind of figure either.

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