Posted on March 21, 2009 - by admin

Family Law Update

Standard

The findings of the trial court in an action to increase support payments will not be reversed unless contrary to the manifest weight of the evidence.

Settlement Agreement

If parties to a marital settlement agreement intend, on dissolution, to preclude judicial modification of maintenance as to amount, it may be better practice to do so in clear and express terms in a paragraph separate from that limiting termination of maintenance. While maintenance provisions are modifiable upon a showing of a substantial change in circumstances, property settlement provisions are not, unless a court finds the execution of the settlement agreement was accompanied by some element of fraud, coercion or misrepresentation. Where the agreement contained no provision which specifically precluded modification, the agreement was modifiable. Once an agreement is embodied is embodied in a divorce decree, its terms will not be modified absent fraud, coercion or contrariness to public policy. The power of the court to modify periodic payments of maintenance and child support is not diminished because the amount of payments was fixed by a settlement agreement agreed to by the parties and incorporated in the decree.

Standing

The Department of Public Aid had standing to bring a petition to modify a child support obligation on behalf of a public aid recipients without regard to any assignment of an arrearage to the Department. Illinois Dep’t of Pub. Aid. The filing of a petition to modify a child support obligation is a support services contemplated under the Public Aid Code (305 ILCS 5/10-1 et seq.) providing the department with standing to file a petition. Illinois Dep’t of Pub. Aid.

Support In General

Bankruptcy court determined that the Illinois state court ordered child support debt was nondischargeable; the court found that the debtor waited too long after his divorce and after he assumed the responsibility of support payments to challenge paternity of the child and get retroactive relief, pursuant to 750 ILCS 45/5(a)(1). “Support” is simply a general term that can include educational expenses for a child who has turned 18 but is still in high school, and educational expenses may include room and board, just as the more generic term, support, may include shelter and food; a trial court can award support to disabled unempancipated children, minor or nonminor under 750 ILCS 5/513(a)(1), and a kind of support, educational expenses, to nonminor children in school under 750 ILCS 5/513(a)(2). In short, if the child has attained majority, the trial court must tern to §513 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/513, when deciding whether to award support for that nonminor child. Subsection (a) of this section allows for modification of child support orders only upon a showing of substantial change in circumstances, and the burden of proof is on the party who seeks the modification.