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Retroactive Child Support in Illinois: How Long?

divorce-decreeChild support in Illinois is always modifiable. Child support is set at an amount usually based on the amount of the non-custodial parents net income. Between the time the child support order is entered and the time the child reaches the age of 18 and graduates from high school, there are virtually always changes in income, needs, and other circumstances that lead to a modification of child support. This leads to the question: In Illinois, how far back can the court go when making a new child support award or modifying an existing child support award.

The answer, as with many things in law, depends on the circumstances. Generally, Illinois law prefers to limit the time for which child support can be awarded to the time the potential child support obligor, usually the non-custodial parent, had notice of the possible obligation to pay child support. Therefore, in an initial Illinois divorce case, child support can be made retroactive to the date of service of the petition (usually just about the same time the divorce petition is filed). However, as most divorce cases take several months to several years to complete, temporary financial orders while the case is pending makes a retroactive award unnecessary in most cases.

After a divorce has been entered, child support may need to be modified from time to time. In these cases, Illinois divorce law limits the date to which a modification of child support can begin to take effect to the date on which the person seeking the modification of child support gives notice to the other side. Under this rule, even if the non-custodial parent has been unemployed for several months before seeking modification, the child support will still be due. Similarly, absent some exception, increases in the non-custodial parents income will not allow for retroactive increases in child support to any point earlier than service of a petition to modify child support.

Parentage cases in Illinois, i.e. cases where the parents were never married, are different. In the initial determination of parentage, the child support award must be made retroactive to the date the petition to establish parentage was filed. In addition, the court in its discretion can make the child support award retroactive to the birth of the child. This can have potentially devastating impacts given a parentage action can be brought as late as two years after the child reaches the age of 18. However, the courts in Illinois are given considerable discretion to decide whether retroactive child support is fair.

If you are involved in a child support case in Illinois, don’t forget about the issue of retroactivity, especially if the case has been pending for a long time. The difference can be substantial.