Financial Misconduct/Inability To Pay Adequate Support

Financial misconduct may, however, give the court some discretion to change the form in which the child support is collected or paid in order to protect the child’s right to support from further misconduct, as does the inadequacy of available income from the payor for whatever reason.

Courts can order various types of protection when there is reason to believe the child support would otherwise be jeopardized. IMDMA §503(g) specifies:

The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.

The appellate court in In re Marriage of Alltop, 203 Ill.App.3d 606, 561 N.E.2d 394, 149 Ill.Dec. 116 (4th Dist. 1990), ruled that a trial court may establish a separate fund or trust for college expenses if the payor parent is unable or unwilling to make such payments directly. See also In re Marriage of Harsey, 193 Ill.App.3d 415, 549 N.E.2d 995, 140 Ill.Dec. 344 (5th Dist. 1990) (evidence regarding father’s undervaluing education, his failure to pay past child support, and his impaired ability to earn income justified establishment of trust fund for future educational needs), and similarly In re Marriage of Petersen, 319 Ill.App.3d 325, 744 N.E.2d 877, 253 Ill.Dec. 144 (1st Dist. 2001).

In In re Marriage of Olson, 223 Ill.App.3d 636, 585 N.E.2d 1082, 166 Ill.Dec. 60 (2d Dist. 1992), the appellate court, against the husband’s challenge, affirmed that the trial court could order that even absent a finding of any special circumstances, an IMDMA §503(g) trust could be required to ensure fulfillment of the husband’s child support obligations in the event of his death. Cf. In re Marriage of Bush, 191 Ill.App.3d 249, 547 N.E.2d 590, 138 Ill.Dec. 423 (4th Dist. 1989), which held that a trust could not be used as a reservoir for support without a showing that the husband had severe emotional problems, stating that in a normal case contempt powers should be a sufficient enforcement mechanism. Note, however, that Bush refused to find contempt in a situation in which the non-custodial father had failed and refused to pay over $12,000 in temporary support over the preceding two years.

See In re Marriage of Hobson, 220 Ill.App.3d 1006, 581 N.E.2d 388, 163 Ill.Dec. 437 (4th Dist. 1991), for an overview of the cases and a reminder that necessity for such a trust can be shown by either the inability or unwillingness of a parent to pay. When the court finds such a trust appropriate, it must describe the amount of support and terms of the trust with particularity, determine a dollar amount of child support, and require the trust to make regular payments. In re Marriage of Wolfe, 298 Ill.App.3d 510 699 N.E.2d 190, 232 Ill.Dec. 743 (2d Dist. 1998).

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