Divorce and Family Law Case Update

By: David Siegel
Cost of Living Increase

Evidence presented to the trial court indicated that the cost of supporting a child had substantially increased and that defendant's income had substantially increased so as to enable him to pay this additional amount; in light of this evidence it was error for the trial court not to order the defendant to pay modified amount plaintiff sought for child support.

Death of Obligor Subsection (c) of this section provides that the obligation to support, unless otherwise agreed in writing or provided in the judgment, will survive the death of the parent obliged to provide child support and seeks to protect the dependent child of divorced parents from loss of support through disinheritance, a loss from which a child of non-divorced parents is indirectly insulated.

An order under 750 ILCS 5/513 for education and maintenance of a child, whether of minor or majority age, is intended to be included within subsection (c) the same as a support order and is not terminated by the death of a parent obligated to pay for these expenses. An order of support for a non-minor child, although only to be granted under special circumstances under 750 ILCS 5/513 is the same as any other order of support and does not terminate upon the death of the parent obligated to pay the support unless otherwise agreed in writing or expressly provided in the judgment. Subsection (c) authorize modification of child support, when a parent obligated to pay support dies, "to the extent just and appropriate in the circumstances"; however, no modification of a support order is warranted where the decedent has adequately provided for the children.

No modification of a support order is warranted where the person obligated to pay support has adequately provided for the children in a testamentary device. Subsection (c) of this section seeks to protect the dependent child of divorced parents from loss of support through disinheritance, a loss from which a child of nondivorced parents is indirectly insulated; a divorced parent is still free the disinherit a child of his divorced marriage, subject only to the limited obligation of support. Since an original decree made no provision for support of the minor children by the father, the former wife's petition filed after the father's death constituted in effect an effort to enforce a claim against plaintiff's estate for child support unrelated to the divorce decree, and, since the death of the plaintiff rendered it impossible for the trial court to enter any personal decree against him, there could be no basis for granting relief provided by an amended decree under former Ill.Rev.Stat., ch. 40, para. 19.

Delayed modification

Where at the time the petition for modification was filed, the defendant was receiving his full salary, he had incurred additional expenses because of a heart attack, but he had also recently received an inheritance, the trial court properly found that reduction of his alimony and support payments was not justified at the time of the filing of the petition, but that a modification was justified effective six months later.

Determination

Support should be determined by accommodating the needs of the children with the available means of the parties.

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