Deviation from the Guidelines

In determining an award of child support that departs from the guidelines set forth in IMDMA §505(a)(1), the court is required to consider all relevant factors included in §505(a)(2), which may include but are not limited to:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) the physical and emotional condition of the child, and his educational needs; and

(e) the financial resources and needs of the non-custodial parent.

Moreover, §505(a)(2) provides that the court may deviate from the guidelines when it finds that application of the guidelines would be inappropriate after considering the best interests of the child based on the relevant factors. The last paragraph of §505(a)(2) provides that when the court deviates from the guidelines, the court’s findings shall state the amount of support that would have been required under the guidelines, if determinable.

Indeed, when the trial court deviates from the guidelines, it must consider and take evidence on the statutory factors under IMDMA §505(a)(2) in awarding child support. In re Marriage of Jelinek, 244 Ill.App.3d 496, 613 N.E.2d 1284, 1293 184 Ill.Dec. 692 (1st Dist. 1993); In re Marriage of De Bow, 236 Ill.App.3d 1038, 602 N.E.2d 984, 177 Ill.Dec. 89 (5th Dist. 1992).

The need for findings applies even if the deviation results from agreement by the parents rather than after a hearing conducted by the trial court. Thus, at the time the parents present their agreement to the court (i.e., at prove-up), they should be prepared to give the court a sufficient factual basis to allow the deviation and make the necessary findings of record. Such a factual basis must address the statutory factors, not simply the fact of an agreement between the parents or that the proposed arrangement “works for them.” Cf. Blisset v. Blisset, 144 Ill.App.3d 1088, 495, N.E.2d 608, 99 Ill.Dec. 161 (4th Dist. 1986), aff’d in part, rev’d in part on other grounds, 123 Ill.2d 161 (1988), in which the court refused to approved an agreement between the parents that attempted to trade visitation rights for support rights (also discussed in §4.4 above).

Cases in which the guidelines were appropriately applied include In re Marriage of De Gironemo, 206 Ill.App.3d 1019, 565 N.E.2d 189, 151 Ill.Dec. 918 (1st Dist. 1990). Cases in which the factors rather than the guidelines were applied include In re Marriage of Cornale, 199 Ill.App.3d 134, 556 N.E.2d 806, 145 Ill.Dec. 188 (4th Dist. 1990) (when custodial parent’s income is substantially higher than other parent’s, child support award may be below guideline amount under IMDMA §505); In re Marriage of Scafuri, 203 Ill.App.3d 385, 561 N.E.2d 402, 149 Ill.Dec. 124 (2d Dist. 1990); and In re Marriage of Cook, 147 Ill.App.3d 134, 497 N.E.2d 1029, 100 Ill.Dec. 760 (3d Dist. 1986). See also In re Marriage of Keown, 225 Ill.App.3d 808, 587 N.E.2d 644, 167 Ill.Dec. 375 (4th Dist. 1992)(deviating from guidelines appropriate in split-custody case).

Recognizing that there are times when the guidelines are simply inappropriate, Slagel v. Wessels, 314 Ill.App.3d 330, 732 N.E.2d 720, 722 – 723, 247 Ill.Dec. 665 (4th Dist. 2000), provided a thoughtful analysis of the facts and circumstances and found, among other things, the following:

The guidelines are a useful method of insuring that child support is set in an amount that is a reasonable and necessary. Section 505, however, does not provide comprehensive rules for every conceivable situation. It is recognized that there are times when it will be improper for the trial court to apply the guidelines. . . . Even the determination of “net income” is not always a straightforward, mechanical process. . . . “If the net income cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in the particular case.” 750 ILCS 5/505(a)(5). . . .

In re Marriage of DiFatta, 306 Ill.App.3d 656, 714 N.E.2d 1092, 239 Ill.Dec. 795 (2d Dist. 1999), reiterates that when determining whether to deviate from statutory child support guidelines, the trial court’s consideration of statutory factors is mandatory and not discretionary. In reviewing IMDMA §505(a)(2), the court held that because dissipation by the payee spouse is not such a mandatory factor, the wife’s dissipation could not be offset against the husband’s child support obligation.

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