In Illinois, changes in child support or maintenance can often be challenging to navigate, particularly when it comes to determining whether a significant change in circumstances justifies a modification of an existing order. Historically, one major hurdle has been the defense that changes were “contemplated” or “foreseeable” at the time of the original agreement, thereby negating the possibility of modifying support orders. However, recent amendments have brought much-needed clarity and fairness to this area of law.
Out with the Old: The Repeal of the “Contemplation” Defense
On May 13, 2022, a significant amendment (P.A. 102-0823) was made to sections 510(a)(1) and 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510). The change explicitly removes the consideration of “contemplation or foreseeability of future events” as a factor or defense in determining whether a substantial change of circumstances has occurred, unless specifically stated in the court’s order or the parties’ agreement.
This amendment marks a notable shift in family law by ensuring that the opportunity to modify support or maintenance orders isn’t easily dismissed based on arguments about what was “foreseen” at the time of the original order. Let’s explore how the previous standard created complications in modification proceedings and how this change will impact families moving forward.
The “Contemplation” Defense: A Barrier to Fair Modifications
Before this legislative change, many modification proceedings were thwarted by arguments that the significant change in circumstances had already been anticipated or contemplated by the parties or the court at the time the original order was made. As a result, petitions to modify support or maintenance were often denied without fully considering the merits of the new circumstances.
Several cases highlighted the challenges faced by those seeking modifications:
In In re Marriage of Salvatore, the court relied on boilerplate language in a marital settlement agreement to conclude that changes were contemplated.
In re Marriage of Connelly similarly involved a true-up provision regarding the husband’s income, which led the court to deny the modification request.
In re Marriage of Durdov involved a combination of boilerplate language, a true-up provision, and prior court orders, all of which were used to argue against the modification.
These cases demonstrate how the contemplation defense often became an obstacle, even when the changes in circumstances were substantial and justified a reevaluation of the original order. For instance, in In re Marriage of Yabush, the trial court found that an increase in the husband’s income from $138,000 to $2.2 million did not constitute a substantial change due to the contemplation represented by the true-up provision. Though the appellate court ultimately reversed the decision due to insufficient evidence of contemplation, the Salvatore, Durdov, and Connelly decisions still remained influential.
The New Standard: A Focus on Current Realities
The amendment to sections 510(a)(1) and 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act aims to eliminate ambiguity and ensure fairness. Now, parties seeking a modification of support or maintenance only need to demonstrate a substantial change in circumstances, without worrying about arguments regarding whether the change was foreseeable or anticipated years earlier.
The amended language clarifies that contemplation or foreseeability should not be considered unless specifically stated in the court’s order or in an agreement incorporated into the court’s order. This means that unless the original agreement or judgment explicitly addresses the occurrence of a particular future event, that event can indeed be used as the basis for seeking a modification.
This change ensures that the courts take a fresh look at current circumstances without being unduly influenced by arguments based on what may or may not have been foreseen years ago. It also gives families the flexibility to address evolving financial realities in a manner that is fair and just.
What This Means for You
If you’re considering seeking a modification of your child support or maintenance order, this recent legislative change could make a significant difference in your case. You no longer need to fear that your petition will be dismissed simply because someone could argue that the change was “contemplated” at the time of the original order. Instead, the focus will be squarely on whether there has been a genuine, substantial change in circumstances that warrants a modification.
This update is especially important for parents and spouses facing significant changes in income, employment, health, or other life circumstances that impact their ability to meet—or their need for—financial support.
Conclusion
The recent amendment to Illinois law removing the contemplation defense from modification proceedings marks a positive development in family law, making it easier for individuals to seek adjustments that reflect their current financial situation. Whether it’s a change in income, health, or other major life events, courts can now evaluate modification requests based on the present needs of both parties, without being constrained by assumptions about what was anticipated long ago.
As always, if you’re considering pursuing or defending against a modification, it’s important to consult with an experienced family law attorney who can help you navigate the new rules and advocate for your best interests.
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