Change In Circumstances

Change in Circumstances

___In General
   A “Substantial change in circumstances” may not be founded on changes in financial conditions contemplated by the judgment for dissolution of marriage.  In re Hughes
   Changed conditions are necessary to warrant a change in support payments.  In re Wettstein
   When a material change has occurred, creating an imbalance between the child’s needs and the parent’s support capabilities, the act requires modification.  Ingwerson v. Woeckener
   Maintenance and child support are continuing obligations subject to change as the conditions and circumstances of the parties warrant.  In re Kessler
   Although the law looks with favor upon amicable settlement of property rights between parties to a divorce and is reluctant to disturb judgments based upon such settlements, whenever a request for modification is sought, it is the duty of the court in which the action has been brought to ascertain all of the pertinent facts and circumstances and then apply the statutory standard of “substantial change of circumstances” to determine if a modification should be made.  In re Helfrich
   Maintenance provisions are modifiable upon a showing of a substantial change in circumstances, while property settlement provisions are not.  In re Christianson
   Upon application for a modification of support, the court’s paramount consideration is whether a substantial and material change in circumstances has occurred since entry of the decree which would authorize the court to change the allowance.  Roqueplot v. Roqueplot
   Subsection (a) of this section allows the provisions of a judgment respecting support to be modified only upon a showing of substantial change in circumstances.  What “change in circumstances” is required is left to the interpretation of the courts.  That interpretation should be guided by the basic premise that the court should act in such manner as to serve the best interests of the children while giving due consideration to the rights and interests of the parents.  Legan v. Legan
   A party may not unilaterally terminate child support payments when there is a change in circumstances.  Jozwick v. Jozwick
   Under former Ill. Rev. Stat., ch. 40, para. 19 (see now this section), reasonable and proper alterations in support where those necessitated when the conditions and circumstances of the parties had materially changed subsequent to the entry of the divorce decree.  Liss v. Liss
   Although this Act does not specify the conditions on which alimony may be terminated or modified, it has been construed to allow modification of an award upon a showing of substantial change in the circumstances of the parties.  Baker v. Baker
   In all cases where petitions to modify payments under a divorce decree are involved, the primary question is whether or not changes in circumstances of the parties justify the modification.  Bulmer v. Bulmer
   The issue on a petition for modification of child support payments is whether there has been a material change of circumstances since the entry of the original decree.  Thomas v. Thomas
   Before an order for support payments can be modified there must be a finding of changed circumstances which relate either to the needs of the children or the financial condition of the parents.  Metcoff v. Metcoff
   The court may not arbitrarily or capriciously modify the provisions for alimony or child support but can do so after a substantial change is shown to have occurred and the burden of proof is upon the applicant to show such material changes in circumstances as would justify modification.  Loucks v. Loucks
The issue on a petition for modification of child support payments is whether there has been a material change of circumstances of the parties since the entry of the decree.  Lewis v. Lewis
   Under former section 19 of this Divorce Act (see now this section), the issue in a hearing on a petition to modify a divorce decree to require the former husband to pay an increased amount for support of the children of the parties, is whether there have been material changes in the circumstances of the parties since the entry of the divorce decree; an increase in monthly support payments is warranted when the evidence establishes that the needs of the children have increased, and the means of the supporting parent have also increased so as to enable him to contribute additional sums to his children’s support.  Kelleher v. Kelleher
   On a petition for modification the inquiry is necessarily directed to the question whether there have been material changes in the circumstances of the parties since the entry of the original decree; if petitioner’s wants and necessities have increased and the means of the defendant is shown to have grown so as to enable him to contribute to such increased needs, then an additional allowance is proper.  Patterson v. Patterson

___Ability to Pay
   The increased ability of the obligor parent alone can justify an increase in child support.  In re Heil

___Application
   Subsection (a) of this section governed cases in which the trial court was making an initial determination of child support or an initial award of child support and maintenance, not, as occurred in the case at bar, the termination of maintenance and the modification of child support; therefore, plaintiff, who met her burden of establishing a substantial change in circumstances, was entitled to some increase in support payments.  Deardeuff v. Deardeuff

___Authority of Old Case Law
   Since subsection (a) of this section codifies previous case law by requiring a showing of a substantial change in circumstances before a support order can be modified, cases determined prior to the new Act are relevant in determining what disposition should be made with respect to child support cases.  Spencer v. Spencer

___Burden of Proof
   In a case arising out of the construction and application of an agreement incorporated into the parties’ divorce decree, the appellate court determined that further proceedings were required to determine whether the former wife had established changed circumstances warranting an increase in child support; the former husband had carried his burden of showing that changed circumstances warranted an adjustment in procedures regarding the son’s medical expenses, but further proceedings were required to determine how the procedures should be implemented.  Turrell v. Turrell
   The payor spouse is not relieved of demonstrating changed circumstances; rather, the lack of good-faith effort to achieve financial independence may, if proved, constitute the changed circumstances necessary for modification; this distinction is important due to the burden of proof.  In re Lenkner
   A modification may only be had upon the showing of a “substantial change” in circumstances.  In re Olsen
   After the threshold question of whether a substantial change in circumstances has occurred is answered, then and only then may the court determine the amount of the increase in child support.  In re Heil
   The burden of demonstrating a substantial change in circumstances is on the party seeking modification.  In re Lyons
   In order to obtain relief under either this section or 750 ILCS 5/610, a petitioner must show a change in circumstances from the situation which existed at the time the original order was entered; in both cases, relief may be necessary while an appeal is pending but the appellate court cannot grant such relief because its only power to change the effect of the judgment on appeal is that to stay the enforcement of the judgment.  In re Spangler
   To receive increased support pursuant to a modification of settlement agreements, a moving party must show that the children have grown older and the cost of living has risen if , at the same time the moving party can also demonstrate an increased ability on the part of the defendant to pay.  In re Helfrich
   Modification of child support may be made only upon a showing of substantial change in circumstances.  In re Schmerold
   In order to establish a substantial change in circumstances the petitioning party must show an increased ability of the supporting spouse to pay and increased needs of the children since the previous order.  In re Schmerold
   A trial court may terminate or alter child support provisions previously ordered; however, only a material change in circumstances will justify any such modification and the burden of demonstrating circumstances warranting modification is on the person seeking it.  Glass v. Peitchel
   The burden is on plaintiff to show that the circumstances of the parties have materially changed, and where no evidence of a change in the financial condition of the parties is offered, the petition must be denied.  Nordstrom v. Nordstrom
   Under former section 18 of the Divorce Act (see now this section), the burden was on the plaintiff to prove a material change in circumstances by clearly establishing an increased need for the support of the children and a corresponding increased ability to pay on the part of the defendant since the time of entry of the divorce decree.  Goldberg v. Goldberg

___Consent Decree
   When an agreement of the parties with respect to alimony and property rights is adopted by the court and incorporated into the final decree, the agreement becomes merged in the decree, and the rights of the parties thereafter rest upon the decree; however, the incorporation of the settlement agreement into the decree by agreement of the parties does not affect the power of the court to alter that provision of the decree when a change of circumstances warrants a modification.  Brandel v. Brandel

___Cost of Living
   An increase in the child’s needs can be presumed on the basis that the child has grown older and the cost of living has risen.  People ex rel. Stokely v. Goodenow
   If a former spouse’s increased ability to pay is shown, the fact that the child receiving support has grown older and the cost of living has risen are proper bases for establishing increased need under this section.  In re Boyden

___Death of Child
   The circumstances were clearly changed from the time when an original divorce decree was entered and both children were alive and living at home, to when, after the death of one child, the only expenses for the care and support of the other child were monthly payments to the institution in which he lived until has death.  Needler v. Needler

___Discharge from Military Service
   The trial court determining that the discharge of plaintiff from military service was a material change in the husband’s circumstances necessitating further consideration of support for the minor child, when this discharge and discontinuance of the government allotment for child support were viewed in connection with the subsequent financial condition and amount of earnings of plaintiff.  Edwards v. Edwards

___Effect on Child
   Mere fact that there has been a change in conditions is not sufficient in itself to warrant modification of provisions of divorce decree dealing with custody of a child unless those changed conditions affect the welfare of the child.  Stark v. Stark

___Employment
   Father’s change in employment status, which yielded a 130 percent increase in the father’s weekly income, was sufficient to support a petition for modification of the father’s support obligation under 750 ILCS 5/510(a) and required application of the support guidelines found in 750 ILCS 5/505.  Anderson v. Heckman
    Where a trial court’s decision reducing child support is based on a finding of an obligor’s good-faith voluntary change of employments, on appeal the party opposing the motion may attach either the finding the obligor acted in good faith in changing employment or that such a change justified a reduction in child support.  In re Barnard
   Whether respondent’s conduct leading to the loss of his employment constituted acts of commission or omission, the evidence was sufficient to allow the trial court to conclude that his conduct was deliberate and his discharge was not merely a fortuitous occurrence; under these circumstances, the trial court could properly view his change of employment as “voluntary” and the record supported the trial court’s exercise of its discretion in denying respondent’s petition to modify his support obligation.  In re Imlay
   If the trial court, upon allowing a petition for modification under this section, finds that a spouse receiving maintenance is appropriately employed, it may reduce maintenance commensurate with her ability to gain financial independence; on the other hand, if the spouse receiving maintenance is able to work but unwilling to obtain appropriate employment and is not making a good faith effort to gain financial independence, it may reduce or discontinue maintenance.  Conversely, if the court finds that there is a good reason for her inability to achieve full or partial financial independence, it may continue such maintenance and extend its duration.  In re Gunn
   If the employment change is voluntary, the change in employment must be made in good faith and not prompted by a desire to avoid one’s child support obligation for modification to be allowed.  In re Lavelle
   Child support payments should be reduced where substantial economic reversals result from an involuntary change or loss of employment.  In re Lavelle
   A good faith, voluntary change in employment which results in reduced financial ability can constitute a substantial change in circumstances justifying a reduction in a child support obligation by the court; the test for determining if a decision was made in good faith is whether the change was prompted by a desire to evade financial responsibility for supporting the children or the otherwise jeopardize their interests.  In re Webber
   Where the record supported a determination that respondent’s decision to return to college and reduce the hours of his employment was made in good faith and not out of a desire to evade his financial responsibilities, the court did not abuse its discretion in ordering a reduction in his child support payments.  In re Webber
   Good faith in a spouse’s voluntary change of employment is not shown where it can be determined that the change has been prompted by a desire to evade financial responsibility to the supported spouse.  In re Kowski
   A voluntary, good faith change in employment need not equal or increase the spouse’s income; indeed, substantial reductions may be permissible and do not per se constitute lack of good faith.  In re Kowski
   Unless good faith is shown, a voluntary termination of employment by a supporting spouse is not considered a material change in circumstances sufficient to warrant abatement or modification of support obligations.  In re Ebert
   It was within the discretion of the trial court to abate the child support payments on the uncontradicted testimony of the father that he was discharged from his employment and had no other income.  Glass v. Peitchel

___Evidence
   Where a defendant filed a judicial admission of his ability to pay, but never attempted to put his financial condition in issue until after a judgment was rendered, the defendant could not assert as a substantial change in circumstances any change in his financial condition which occurred before the judgment, because the defendant never asserted before that date that the admission did not represent his then current financial condition.  Giamanco v. Giamanco
   A trial court was in error in decreeing that plaintiff’s right to receive support payments from the defendant was strictly limited to the net rentals from their business property, and limiting a testimony at a hearing on the petition for increase of payments for support and maintenance to the question of net rentals from the business property, in refusing to hear any evidence as to any change in circumstances and conditions since the entry of the original divorce decree, and in limiting and restricting the payments of a certain amount per month which was ordered to the net rentals received from the business property and ordering that payments terminate on the sale of property.  Larson v. Larson

___Evidentiary Hearing
   The trial court erred when it refused to allow an evidentiary hearing for the purpose of determining whether there was a sufficient change of circumstances to allow modification of the divorce decree where the separation agreement did not expressly preclude or limit modification of its terms.  In re Bowman

___Factors Considered
   Trial courts have wide latitude in determining whether a substantial change in circumstances has occurred and should consider not only the needs of the child and the financial status of the non-custodial parent, but also the needs and financial status of the custodial parent, the financial resources of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, and the physical, emotional, and educational needs of the child.  In re Riegel
   Subsection (a) of this section allows for modification of a child support order upon a showing of a substantial change in circumstances, in deciding whether to modify a support order, the court must consider the same factors it weighs under section 505 of the Act (750 ILCS 5/505) when it formulates an original support order.  In re Dodds
   Whether a spouse may rely on his retirement as a change in circumstances justifying a modification of maintenance depends on the circumstance of the individual case; relevant factors include his age, his health, his motives and timing for the retirement, his ability to pay maintenance after retirement, and the other spouse’s ability to provide for himself.  In re Colombo
   Economic reversals as a result of changes in employment or bad investments, if made in good faith, may constitute a material change in circumstances sufficient to warrant a modification of a child support order.  In re Hardy
   In determining whether a change in status was made in good faith, the crucial consideration is whether the change was prompted by a desire to evade financial responsibility for supporting the children or otherwise jeopardize their interests.  In re Hardy
   If the threshold question of substantial change is met, the court, in determining the modification, considers the same factors it considered in formulating the original amount.  In re Wettstein
   In determining whether there is a substantial change in circumstances, factors to be considered include the needs of the child, the financial status of the non-custodial parent, the financial status and needs of the custodial parent, and the physical, emotional and educational needs of the child.  Ingwerson v. Woeckener
   In making a determination as to whether a substantial change has occurred, the court must take into consideration the circumstances of the parents, the circumstances of the children, the ability of the mother as well as that of the father to provide support, their ages, health, property and income, and stations in life, and the court may also consider whether the supporting spouse has remarried.  Roqueplot v. Roqueplot
   Where a former spouse’s ability to pay is shown, the fact that children have grown older and the cost of living has risen are proper bases for establishing increased need, considering the best interests of the children.  In re Schmerold
   The increase in the children’s needs must be balanced against the relative ability of the parents to provide for them, and where a change has occurred which creates a substantial imbalance between the child’s needs and the parent’s support capabilities modification is required.  In re Schmerold
   Assets derived from the divorce settlement itself cannot be considered in measuring the alleged improvement in spouse’s financial circumstances, for to do so would constitute an attack on the divorce decree itself.  In re McGowan
   A change of circumstances which will permit a modification of the child support provisions contained in a divorce decree may relate either to the needs of the child, the financial condition of the parents, or both.  Harding v. Harding
   Changed circumstances which permit modification of child support payment provisions related to the needs of the minor child and the financial circumstances of the parties.  Lewis v. Lewis
   An increase in monthly support payments is warranted when the evidence establishes that the needs of the children have increased, and the means of the father have also increased so as to enable him to contribute additional sums to his children’s support.  Grinton v. Grinton

___Failure to Make Effort to Achieve Financial Independence
   The court did not err in awarding bi-weekly maintenance to a 32-year-old wife, following a 13-year marriage, without ordering that the award time-limited/reviewable and without ordering that the wife seek employment, where the wife had a high school education and no further training or education; further, notwithstanding the absence of such conditions, the award was reviewable and the wife was required to seek employment as this section allows modification upon a showing of a substantial change of circumstances, and the failure to make a good faith effort to achieve financial independence can be the basis for a petition for modification.  In re Mayhall

___Failure to Seek Employment
   The wife achieved the statutory goal of rehabilitative maintenance, and the trial court abused its discretion when it failed to grant the husband’s motion to terminate maintenance where: (1) the wife obtained a bachelor’s degree in fine arts with honors, paid for by the husband pursuant to the trial court’s order; (2) the wife was employable, her children were emancipated, she had received a substantial amount of the marital assets, and she had no apparent health impairments that might restrict her from working; (3) the trial court’s maintenance review decision clearly reflects that the wife was under an affirmative obligation to seek appropriate employment to become self-sufficient; and (4) the record reflected that, I the four years since she graduated from college, the wife had done little toward finding gainful employment or advancing her efforts at becoming self-sufficient.  In re Contrell

___Illustrative Cases
   The circuit court did not abuse its discretion when it declined to terminate maintenance but extended it at a reduced level in light of each party’s change of circumstances.  Hup v. Hupe
   The uncontroverted evidence presented clearly showed that the average month cost of raising the children had risen dramatically where, even after removing the items that husband considered luxuries, i.e., allowing the children to attend summer camp, son’s involvement in band and daughter’s involvement in gymnastics, the increase was shown to be about $450 a month; since this was a substantial change, the trial court erred in determining that no change of circumstances had occurred.  In re Riegel

___Increase in Income
   Husband was not entitled to modification of support award where his nondisclosure of income prior to the circuit court’s adoption of the marital settlement agreement precluded the husband was proving that the there had been a substantial change in income necessitating modification.  In re Sassano
   Where the trial court applied a type of “sliding scale” approach to modification of child support, it erred; every time a paying parent’s income increases it does not mean that child support payments increase in a like percentage, but rather, the petitioning party must show that there has been a material change in circumstances.  In re Plotz
   A modification of judgment respecting child support may be made only upon a showing of a substantial change in circumstances.  In re Bean
   Subsection (a) of this section provides that a support judgment can only be modified after showing a substantial change in circumstances, which requires the petitioning party to show that the support spouse has increased ability to pay and the child receiving support has increased needs.  In re Boyden
   When a supporting spouse’s financial condition improves, notably where there is a discussion suggesting that increases should be made, child support payments may be required to be increased, even though there is no showing that the child’s or children’s needs have increased specifically where the original support payments did not adequately meet the children’s needs.  Legan v. Legan

___Insufficient
   Where defendant lost his job, was adjudicated a bankrupt then chose to revive a debt to the potential harm of his child, there was insufficient change of circumstance. Gaines v. Gaines
   Having an income of $490.36 a month, and debts including judgment against him for $143.65, a internal revenue assessment of $141.49, a doctor bill of $145, and attorney’s fees for his defense in another lawsuit did not constitute sufficient basis for reducing the child support payments from $56 twice a month to $20 per week.  Gaines v. Gaines

___Loss of Job
   Where the valid, enforceable portion of the agreement required father to pay $660 per month in child support, this obligation continued until father petitioned for and was granted a modification regardless of his loss of job.  In re Ingram

___Needs of Recipient
   A termination or modification of alimony must reflect a substantial change in the needs of the parties and cannot be used to punish the moral transgressions of the wife.  Hall v. Hall

___Net Worth
   Where petitioner claimed that the focus of the court should have been the change in his income and not his net worth because the parties did not contemplate that petitioner would have to liquidate assets to meet his maintenance and child support obligation under the separation agreement, then the court had discretion to consider evidence of his net worth.  In re Eisenstein

___Not Shown
   The trial court erred in determining the existence of a “substantial change in circumstances” based on the termination of alimony and automobile payments as contemplated by the divorce judgment.  In re Hughes
   There was no substantial change in circumstances so as to justify a downward modification of a father’s child support obligation, notwithstanding the father’s argument that his payment of college expenses created such a substantial change in circumstances, where the parties’ agreement provided for this very occurrence and, in addition, the father’s income had actually increased since the last modification of judgment.  Mulry v. Mulry
   An increase in father’s net income due to his ability to deduct maintenance payments does not constitute a substantial change in circumstances.  Pylawka v. Pylawka
   While is true that a change in the ability of a recipient of maintenance to support herself could constitute a substantial change in circumstances under subsection (a), the record indicated that husband failed to present to present evidence of a change in wife’s ability to support herself and the court found that husband failed to meet his burden of showing a substantial change in circumstances.  In re Waggoner
   Although appellee had become employed, the record supported the trial court’s determination that she remained unable to adequately support herself through her employment and that no substantial change of circumstances had occurred for her financially since the maintenance amount was last reduced.  In re Pedersen
   The evidence from appellant’s affidavits of income and expenses indicate that, other than his alleged increase in expenses did not show any change in circumstances since the last order that would justify a further modification of maintenance.  In re Pedersen
   Where neither husband nor wife demonstrated a material or substantial change in their relative positions, the trial court did not abuse its discretion in refusing to modify the original maintenance award.  In re Plotz
   There was sufficient evidence to determine that there was no substantial change in circumstances of the petitioner since petitioner did not change employment other than to very interests he owned, and even though he indicate some losses, his overall employment and investment scheme continued.  In re Eisenstein
   Where subsequent to an initial maintenance award the former husband’s salary decreased from $61,000 to $50,000, his wife was found to be completely rehabilitated and her salary had increased from $12,949 to $23,580, the trial court did not abuse its discretion by requiring continued maintenance payments by the former husband.  In re Garelick
   Where court did make specific findings regarding petitioner’s income for 1982, the year in which his marriage was dissolved, and used these findings for comparison to determine petitioner’s change in circumstances, testimony regarding the nature of his business practices and the current status of his business affairs, as well as testimony at the prove up in 1982 regarding his income in 1981 and 1982, and thus the decline in income from 1981 to 1982, it was correctly determined that overall he had not undergone a substantial change in circumstances; hence, the use of 1982 income figures in addition to all the other evidence heard and considered was not error or an abuse of the court’s discretion.  In re Eisenstein
   Evidence presented was wholly inadequate to prove a substantial change in circumstances necessary for the termination of monthly maintenance payment.  In re Logston
   The trial court did not abuse its discretion in finding there had been no change in circumstances which would permit the modification sought by plaintiff where father did not show a change in financial resources of child, mother or father or in physical, emotional and educational needs of child.  In re Emerson
   The trial court could properly have determined that the small increase in custodial parent’s salary did not constitute a substantial change in circumstances sufficient to warrant a modification of the child support order.  In re Butler
   Where an ex-husband’s financial position appeared to have improved since the divorce, it appeared that the wife had never earned more than $3,500 in any given year, and that her monthly expenses exceeded her maintenance, and her testimony concerning her health and as to her ability to maintain limited employment was uncontroverted, there was nothing in the record of a substantial change in circumstances which would have warranted a reduction in maintenance and the trial court erred in so ordering.  Goldberg v. Goldberg
   The record did not demonstrate that the former husband sustained his burden of showing that a substantial change in circumstances had occurred which would have justified a downward modification of support payment.  Roqueplot v. Roqueplot
   Defendant did not establish a substantial change of his circumstances to justify suspension or termination of payments.  In re Potter
   Under section 19 of the former Divorce Act, (see now this section), where a court’s order of March 22, 1977, clearly stated that plaintiff had failed to show a material change in circumstances since entry of the order entered on or about November 26, 1975, the court’s material change in the circumstances of the parties, and assuming arguendo that the court found a material change in plaintiff’s circumstances only, a modification of the decree still could not stand since a careful examination of the record revealed no evidence that defendant was able to pay additional alimony.  Dunn v. Dunn
   Husband’s increased expenses, largely the result of only secondary of a house pursuant to his remarriage, where of only secondary consideration vis-à-vis the obligation owed to his former wife on the question of support and were not a change in circumstances warranting a reduction in maintenance.  Berkeimer v. Berkeimer
   Where the trial court considered the provisions at issue and the various arguments of counsel and concluded that the decree contemplated a monthly child support payment of $550, without contingencies or abatements and, therefore, the sale of the former marital residence was not a material change in circumstances so as to warrant a reduction in child support payments, this construction was reasonable and not clearly erroneous so as to require the reviewing court to disturb the trial court’s ruling.  Winter v. Winter
   A judgment terminating the respondent’s child support obligation, setting aside a lien of trust from respondent’s interest in a trust and removing the obligations of injunction prohibiting him from conveying, transferring or assigning his interest in that property was reversed where no change in circumstances existed and where the original reason for ordering the respondent’s chief asset, his fractional interest in the trust, to be placed in trust as security for the future payment, of the court ordered child support was because of the respondent’s demonstrated untrustworthiness and to insure continued payment of child support from the respondent’s assets in the event of the respondent’s refusal to do so.  Gentile v. Gentile
   While there was a statement in the record by wife’s counsel that husband was making the payments on the second mortgage, there was no indication that he ceased making those payments and thus, there simply was no evidence in the record to support the wife’s allegation that circumstances had changed since the entry of the decree and thus modification of child support was not warranted.  Waggoner v. Waggoner
   There was insufficient evidence to support the trial court’s finding that intervening circumstances had substantially changed to justify a modification of support payment under this section.  Westerberg v. Stephens
   Even had defendant lost overtime earnings, this would not have been a permanent change in circumstances and thus could not have been a valid basis for permanent reduction of child support payments.  Dixon v. Dixon
   The evidence did not reveal a change of circumstances warranting an increase in child support.  Nordstrom v. Nordstrom
   As to the children’s increased needs, plaintiff’s testimony consisted almost entirely of general statements and was often  concerned with the rise in prices due to inflation; increased expenditures due to inflation apply to defendant as well as to plaintiff; consequently, this factor, in and of itself, is not sufficient to establish a material change in circumstances.  Nordstrom v. Nordstrom
   Under former section 18 of the Divorce Act (see now this section), where a plaintiff did not offer any evidence demonstrating a change which necessarily increased the support needs of the children, and failed to show that defendant’s income had changed substantially since the divorce, she was not entitled to an increase in child support.  Goldberg v. Goldberg
   Wife was not entitled to increase in alimony where there was no evidence that her circumstances had materially changed since the entry of the divorce decree.  Goldberg v. Goldberg
   Where it was clear from defendant’s own brief that the matter he attempted to raise before the trial court on the hearing to modify or terminate and on appeal did not occur for the first time during the period after the decree was entered, nor was there any substantial change in circumstances that would have justified modification or termination of payments, defendant’s motion to modify was denied.  Dubin v. Dubin
   Where husband’s take-home pay was reduced from $750 to $730 a month due to a change in his withholding for Federal income tax as a result of the divorce, his asserted financial difficulties allegedly stemming from his obligation on prior family indebtedness could not be considered a change in condition subsequent to the divorce decree, and the order of the trial court that modified the decree was reversed.  Green v. Green
   No change in circumstances were held to support a change in the decree.  Nortwick v. Nortwick
   Provision in divorce decree giving plaintiff the right “to determine the religion in which each child shall be raised” and defendant the right “to determine the education which each child is to have and the schools which each child shall attend” should not have been modified by chancellor since there was no change in circumstances.  Taylor v. Taylor
   A petition for modification of divorce decree, which alleged no fact indicating an increased ability on the part of the defendant to pay, nor stated any facts relative to the needs of the plaintiff other than their increased ages, should not have been granted by the circuit court.  Patterson v. Patterson

___Offsetting Changes
   Where any change in non-custodial parent’s physical ability to work which would indicate reduction or elimination of support payments was offset by the present potential for him to receive money from his aunt’s estate, the circuit court did not abuse its discretion in refusing to modify the support order.  In re Steffen

___Proceedings on Remand
   Where a change in the economic circumstances of one or both of the parties occurred between the remand and the new hearing, the wife’s proper recourse was to file a motion for modification pursuant to subsection (a) of this section, in which she could have presented any evidence of a substantial change in circumstances.  In re Jones

___Review
   The findings of the trial court as to the evidence of a material change in the circumstances of the parties since the origi8nal divorce decree should be reversed only if they are contrary to the manifest weight of the evidence.  Gentile v. Gentile

___Settlement Agreement
   A property settlement agreement which stated that “it is agreed that the payment as heretofore provided of alimony in the amount, of $550 per month will in no way be effected or amended because of an increase in income to either party,” did not divest the court of its power to modify its decree under former section 18 of the Divorce Act *see now this section), but simply precluded consideration of income in determining whether a change in circumstances had occurred and, such a limiting provision could not be against public settlement in lieu of alimony, the parties could have eliminated alimony completely and permanently from the court’s consideration.  Pollard v. Pollard

___Shown
   A substantial change in circumstances was shown, and the case reversed and remanded with directions to enter an order to abate maintenance retroactive to filing of the petition to modify.  In re Johnson
   Father’s obligation to pay a portion of one son’s college expenses had ended and thus he no longer had any financial obligation to this son; this change in circumstances was sufficient to justify the trial court’s order providing for a pro rata reduction in the life insurance obligation.  In re Tieman
   Generally, evidence that a child has attained the age of majority constitutes a substantial change in circumstances which necessitates the modification of child support unless; (1) the parties agree on a different terminating event; (2) the court orders support payments to continue based on the non-minor child’s physical or mental disability or when educational expenses are sought; or (3) the child becomes emancipated at an earlier age.  In re Ferraro
   Where the husband’s business entered bankruptcy and there was no evidence that he voluntarily chose to have his business fail, there was a substantial change in his circumstances that would warrant a reduction or modification of his support obligations.  In re Lavelle
   Inheritances received by wife constituted a substantial change in her circumstances, and the court failed to make any determination of the amount of income which could be generated there from, and some approximation of the income-producing ability of the inheritances was required, explicit findings by the trial court are not required so long as a sufficiently detailed basis exists in the record to support a modification of the award.  In re Zeman
   The trial court appropriately balanced the needs of the child with the significant increase in petitioner’s income and did not abuse its discretion in awarding child support where it determined that the child’s expenses increased after he entered high school, and that the father’s income grew substantially after winning the lottery.  In re Boyden
   Where three of the four children had attained the age of majority, the remaining minor child was older and expenses of her maintenance had increased, a substantial change of circumstances occurred thereby justifying a modification of child support payments.  In re Wettstein
   Where at the time of the divorce, defendant’s gross income was approximately $12,800 and then became around $21,000, when the total increase was about 64% and where the increased needs of the child could be presumed from the fact that he had grown older and the cost of living had risen the trial court was correct in finding a substantial change of circumstances had occurred.  Fedun v. Kuczek
   If the parties cannot agree upon child support after cessation of the unallocated support provided in the decree, such cessation would present a substantial change in circumstances which would permit modification of the judgment for dissolution upon petition of a party and support for the minor child will then be determined by the court.  In re Rapacz
   There was a substantial change in circumstances since the entry of the previous judgment because the children’s needs increased and the defendant’s ability to support his children had increased significantly.  In re Roth
   Plaintiff’s real needs had increased and also the defendant’s real income and ability to pay where defendant’s annual income had risen by more than $12,000, and he had gained interest in an inheritance and a residential building and such a substantial change in circumstances warranted modification.  In re Helfrich
   Substantial changes in circumstances including the emancipation of the couple’s only child and the sufficiency of former wife’s own assets and income to meet her needs, considered in light of former wife’s request that former husband now contribute toward meeting the cost of the son’s college education, warranted a modification of a maintenance award ordered by the court.  Potocki v. Potoki
   A reduction in child support is proper only if based on a substantial change in circumstances; the fact that three of the six children had attained the age of majority at the time of the modification order was such a substantial change in circumstances; as a result, the court did not abuse its discretion in reducing the amount of weekly child support payments from $125 to $100.  In re Christianson
   In light of divorced wife’s increase in salary and her former husband’s decrease in salary due to health problems, there was a sufficient showing of a change in circumstances whereby the divorce decree could be modified to suspend alimony and reduce child support.  Broday v. Broday
   An order of a trial court continuing the liability of the father for support for education purposes was against the manifest weight of the evidence and was reversed where the trial court found that he had suffered substantial economic reverses, there was no evidence that his circumstances had improved since the suspension of payment following a hearing, while the father may have had prospects for future employment, that could not be translated into a present ability to pay, he clearly had no present resources from which to pay educational expenses, and his liability to pay $40 per week for his minor, physically afflicted son would preclude his ability to make any payments for education for his older son.  Elizer v. Elizer
   The trial court abused its discretion in denying a father’s request to require a non-custodian mother to contribute an equitable amount in the support of their minor child where its decision failed to consider the circumstances of all the parties as required by former Ill. Rev. Stat., ch 40, para. 19 (see now this section), particularly that the mother was earning more than the father and, there had been a custody change from the home of the mother to the home of the father.  Hursh v. Hursh
   There was a sufficient showing of change of circumstance to warrant to modification of the amount of payments.  Juen v. Juen
   The trial court, which conducted a long hearing, had ample justification to conclude from the evidence, that there was a change in circumstances such as would justify a modification of the divorce decree reducing the weekly child support payments.  Lewis v. Lewis
   There was no abuse of discretion by the trial court in its modification order when it determined that the financial condition of the defendant had sufficiently changed since the entry of the divorce decree so as to warrant its modification.  Scalfaro v. Scalfaro

___Special Finding
   A previous special finding made in a support order which varies from the guideline and which is no long found to be a factor is a proper consideration in determining a substantial change in circumstances.  People ex rel. Stokely v. Goodenow

___Standard of Living
   Where the original amount of child support was below the 25% statutory guideline and the court found that children would have enjoyed a different standard of living had the marriage not been dissolved, constituting a substantial change in circumstances, the circuit court did not abuse its discretion in modifying the child support, especially considering that the modified amount was raised to conform to the statutory guidelines.  In re Koenigsknecht

___Suspension from Employment
   Suspension from the police force for five days was not a permanent change of circumstances thus would not be a valid basis for permanent reduction in support payments.  Gaines v. Gaines

___Time Period Considered
   Outstanding obligations incurred during the marriage previous to the entry of the decree placed financial demands upon defendant; however, this was not a change in circumstances during the relevant period because the change in circumstances must have occurred after the date of the decree.  Dixon v. Dixon

___Transfer of Custody
   It is well settled that a substantial change in circumstances will warrant modification of child support, and the transfer of custody of a child has been determined to be such a change in circumstances.  In re Van Winkle

___Undisclosed Assets
   There was a change of circumstances after the divorce decree was entered where the husband received an additional $13,230 of income for a year prior to the divorce; the court had the authority to enter an order compelling him to pay an additional amount for child support despite the fact that if the books had been examined at the time of the decree, a bookkeeping entry as to the bonus would have been found.  Waltrip v. Waltrip

___Worker’s Compensation Settlement
   The one time receipt of money from a lump-sum payment of worker’s compensation settlement comes within the parameters of net income as defined in 750 ILCS 5/505(a)(3), and was available for allocation as child support pursuant to this section.  In re Dodds

Cohabitation

___Another Person
   As a matter of law, cohabitation with “another person” referred to cohabitation with someone other than a party to the dissolution.  In re Antonich

___Burden of Proof

___ ___Not Met
   The standard for modification due to cohabitation was not met where former spouse’s roommate made only one contribution toward household expenses, the couple did not have a joint checking account and did not commingle funds in any manner, wife’s cohabitation with roommate did not affect her need for support, maintenance payments were not used to support roommate, couple seldom ate together, wife never did his laundry, they only occasionally slept in the same bedroom, and wife’s cohabitation with roommate was not on a resident, continuing conjugal basis.  In re Arvin

___Conjugal

___ ___Belief
   Courts have generally looked to those facts which would lead a reasonable observer to believe a man and woman who were cohabiting were husband and wife.  Rosche v. Rosche

___ ___Burden of Proof
   Whether a conjugal relationship exists between two people so as to justify termination of maintenance is a factual determination which the spouse seeking to terminate such maintenance has the burden of proving.  In re Nolen
   The burden of proving a conjugal relationship rests with the spouse seeking to terminate maintenance.  In re Reeder
   Once an ex-spouse paying maintenance has demonstrated that a conjugal relationship does exist, it should be incumbent upon the maintenance recipient to demonstrate that the relationship in which he or she is engaged is not the type of relationship which was intended by the legislature to justify the termination of the obligation to pay maintenance.  In re Sappington

___ ___Defined
   The term “conjugal” as used in subsection © of this section does not necessarily require that the parties engage in sexual intercourse or sexual conduct.  In re Sappington
   The legislature did not intend the term “conjugal” to be defined as familiar rather than marital.  In re McGowan
   By “conjugal” the legislature meant a relationship of a husband and wife nature, including its sexual aspects.  In re McGowan

___ ___Sexual Conduct
   While proof of sexual conduct between spouse receiving maintenance and the person with whom the spouse is living is no long necessary to establish cohabitation on a conjugal basis, something more than merely living with another person of the opposite sex is required.  In re Nolen
   A conjugal relationship does not require sexual conduct; an impotent male is capable of a conjugal relationship.  In re Sappington
   While the term “cohabitation” means living together as husband and wife, but does not necessarily imply sexual intercourse, “conjugal basis” implies the assertion of the right of sexual intercourse between husband and wife; thus continuing sexual intercourse must occur between parties one of whom is receiving maintenance payments from an ex-spouse before the pertinent provision of subsection (b) of this section is triggered..  In re Cohenour

___ ___Sexual Conduct
   Out-of-wedlock intercourse can be proved by circumstantial evidence, but the law requires either direct or circumstantial evidence of sexual conduct before maintenance payments can be terminated.  In re Cohenour
   Requiring evidence of sexual conduct does not pose a public policy problem as to the standard of proof.  In re McGowan
   This statute contemplates acts of sexual intercourse as part of the conjugal husband-wife relationship which it seeks to describe.  Halford v. Halford

___ ___Termination of Maintenance
   This section, which authorizes termination of a spouse’s maintenance award on grounds of cohabitation, similarly requires a court to deny the cohabiting spouse’s original request for maintenance if cohabitation is proven.  In re Klein
   Where respondent’s counsel conceded respondent was cohabiting, neither the trial court or the appellate court had to evaluate changes in recipient spouse’s need for support in order to determine whether respondent’s relationship amounted to cohabiting which justified denying her maintenance.  In re Klein
   A former spouse’s obligation to pay maintenance can be terminated by order of court whenever the recipient spouse has entered into a conjugal relationship with another person, whether by legal or other means.  In re Nolen

___Continuing Basis

­­___ ___Not Shown
   Where the wife’s paramour bought groceries for her and her children and bought some clothing for her, he took his meals with her and her children, he worked with her to clean and maintain their residence, she did his laundry and cooked his meals, he moved into her residence in October and left in January, and after moving out, phoned weekly, Christmas gifts to her children were signed “Larry and Mom”, said she spent the holidays at his parents’ home, the evidence was insufficient to establish cohabitation on a continuing basis.  In re Clark

___Effect
   The trial court’s assertion that “[o]nce you live with a man, you have voided your chance to get alimony,” was an overbroad and erroneous interpretation of legislative intent.  In re Bramson

___Evidence Insufficient
   The trial court’s decision not to terminate maintenance was not against the manifest weight of the evidence where trial court considered the short period of cohabitation, the continuing need for support, the lack of commingling of funds, the petitioner’s payment of all her bills with the exception of rent and utilities, and the termination so of the relationship, and ruled that there was no de facto relationship.  In re Liming
   The trial court’s finding that the relationship implied more of a dating relationship and not a de facto marriage was not against the manifest weight of the evidence, where the former wife and her friend dated other people as well as each other, took trips separately as well as together, maintained separate residences, and did not commingle assets.  Rosche v. Rosche
   The evidence fell short of establishing a husband-wife relationship where both the wife and her boyfriend dated other people, her boyfriend considered her arrangement as rooming with a friend on a temporary basis until she rejoined her children, she moved in, in part, to provide more room for visitation with her children, she retained her name, received mail at more than one address and had identification cards listing several addresses, and additionally, there was no evidence that the two commingled their funds, as might be expected in a husband-wife relationship.  In re Bramson

___Factors

___ ___Not Shown
   Where there was no evidence of a sexual relationship, no evidence of sharing expenses, no evidence of the alleged cohabitant paying any of respondent’s expenses the evidence was insufficient paying any of respondent’s expenses the evidence was insufficient evidence to warrant to termination of maintenance.  In re Johnson.
   The fact that wife’s relationship was terminated before hearing and lasted only approximately six months weighed against finding a conjugal relationship.  In re Caradonna
   Where the nature of an ex-wife’s employment as a full-time housekeeper and nurse required she live in her employer’s house, and there was no indication that either she or her employer considered themselves to have a husband-wife relationship, the ex-wife’s relationship with the employer did not justify termination of all support on the basis of cohabitation.  In re Nolen

___ ___Not Shown
   There was ample support for the view that plaintiff’s need for support had not been materially affected and that defendant has failed to sustain his burden of establishing that plaintiff was involved in a de facto husband-wife relationship with her landlord; accordingly, the trial court’s finding that plaintiff was not cohabiting with another person on a resident, continuing and conjugal basis was not against the manifest weight of the evidence.  In re Reeder

___ ___Shown
   The trial court’s finding that petitioner cohabitated with another man on a “resident, continuing conjugal basis” was not against the manifest weight of the evidence where the record revealed they shared meals, bank accounts, household chores, and credit accounts, as well as exchanged holiday and birthday gifts and the two also took vacation together and maintained a sexual relationship.  In re Toole

___Finding

___ ___Review
   A trial court’s finding that the recipient spouse is not living with another person under circumstances amounting to a de facto husband-wife relationship will not be reversed unless it is contrary to the manifest, weight of the evidence.  In re Caradonna

___Husband/Wife Relationship
   The evidence established that petitioner had entered into a relationship which amounted to that of husband and wife and fell within the provisions of subsection (c).  In re Frasco

___Purpose
   The termination of maintenance upon the recipient’s resident, continuing and conjugal cohabitation with another person was most likely added to subsection (b) of this section to end the inequities caused when a former spouse had in fact entered into a husband-wife relationship, although not formalized legally, and was still entitled to maintenance merely because Illinois does not recognize common law marriages.  In re McGowan

___Settlement Agreement

___ ___Basis for Termination
   Where parties expressly provided in clear and unequivocal language for maintenance and for its termination upon the occurrence of either of two conditions, the death or the remarriage of the respondent, the execution of this agreement, voluntarily signed by both parties who were each represented by counsel, constituted a clear, unequivocal, and decisive act from which it may be inferred that petitioner waived conjugal cohabitation as a condition for the termination of maintenance.  In re Giles
   The omission of conjugal cohabitation as a condition for termination in a maintenance agreement indicates that the parties did not intend to have this statutory condition apply.  In re Arvin

___Termination of Maintenance
   The trial court erred in terminating maintenance from the date of the former husband’s petition, rather than the date his former wife began conjugal cohabitation with another man.  Snow v. Snow
   Cohabitation automatically terminates a maintenance obligation; thus, the payor spouse is not required to file a petition before a maintenance obligation terminates.  Gray v. Gray
   When termination of maintenance was sought based on cohabitation under subsection (c)the trial court appropriately considered various factors defining the relationship, such as (1) its length; (2) the amount of time spent together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together; the test the court employed was the totality of the circumstances.  In re Herrin

Collateral Estoppel
   Since the facts considered by the trial court at the modification hearing were different from the facts in the prior hearings on maintenance award, the doctrine of collateral estoppel was not applicable.  In re Connors

Back to 750 ILCS 5/510 Home Page