Interest on Child Support in Illinois

The calculation of interest on child support in Illinois is set by statute. The rate is 9% on past-due awards. That part is easy. The rest can be difficult. Interest on child support is supposed to be simple, that is, interest is never charged on interest (like the way banks do for accumulating accounts). Generally, payments go toward current child support first and then towards the child support owed. Only after that is interest on the child support finally paid under Illinois law.

This leads to questions and a recent interaction I had with another attorney on Avvo. The question related to whether there was some way to have the interest paid first. This could make a difference of thousands of dollars in some larger child support cases. He took the position that perhaps non-voluntary payments would be read to not be “payments.” My response is below:

Its an interesting question. Technically, 12-109 applies to judgment “arising by operation of law.” However, really all judgments regarding child support arise by operation of law but my later be “confirmed” and consolidated into a subsequent judgment. I suppose there could be an argument when there is a judgment for retroactive support that it doesn’t “arise by operation of law.”

2-1303 itself doesn’t say anything about how to apply payments. It does say that interest shall be computed only on teh unsatisfied part of teh judgment. It also states interest accrual can be stopped by tendering payment of judgment, costs and interest without preventing an appeal or other steps to reverse or vacate.

Whether 12-109 or 2-1303 interest must be simple and not compound. The case holding for that premise under 2-1309 also provides that partial payments would apply to interest owed first. It does not distinguish the source of “payments.”

So, the real question then becomes the definition of “payments” and whether something received in a non-voluntary manner would still be a payment. Withholding is not voluntary, but would still be considered a payment. 12-109 sets tax intercepts differently, but only makes it more beneficial to the obligor by applying it completely to the past-due amount (though really it only makes a very small difference.) 12-109 makes no other exceptions for other types of payments (I know, a loaded term used here). So I posit as follows:

1. Interest for child support accrues per 12-109 and therefore does not accrue per 2-1303. Case law for 2-1303 is not binding, but may be persuasive.

2. 12-109 excepts one type of payment specifically. Under the doctrine of inclusio unius est exclusio alterius (the inclusion of one is the exclusion of others) therefore other types of payments are all treated the same. The receipt of money from any source, regardless of how achieved should be considered payment, whether or not voluntary because the specific exception for tax intercepts indicates the legislature considered it a type of “payment.”

But I’m not a judge…