Abatement of Support

Published in Chicago Lawyer Magazine, March 2009
By Daniel Stefani

With more and more obligors of child support and maintenance losing their jobs, the challenge for the divorce courts is how to protect the obligee ex-spouse and minor children with out unfairly punishing the obligor ex-spouse.

When an obligor ex-spouse becomes unemployed, upon proper petition and notice, the court will examine in part the circumstances leading up to the employment termination. Assuming the obligor ex-spouse did not voluntarily leave the employment, the court is often presented with the obligor’s motion to modify the child support obligation downward or the obligee’s petition for adjudication of indirect civil contempt.

Section 510 of the Illinois Marriage and Dissolution of Marriage Act allows for such a modification. At first blush, it would seem fair to give the obligor ex-spouse a modification downward, assuming there is no severance package or other investment income that could be used to set a support amount.

However, temporary abatement of support is another remedy available to the court that is intended to strike a balance between being unfairly oppressive to the obligor ex-spouse (such as a contempt finding) and protecting the interest of the obligee ex-spouse and minor children.

Supreme Court Rule 296(f) states: (f) Petition for Abatement. “Upon written petition of the obligor and after due notice to obligee (and the Department of Public Aid, if the obligee is receiving public aid) and upon hearing by the court, the court may temporarily reduce or totally abate the payments of support, subject to the understanding that those payments will continue to accrue as they come due, to be paid at a later time. The reduction or abatement may not exceed a period of six months except that upon further written petition of the obligor notice to the oblige, and hearing, the reduction or abatement may be continued for an additional period not to exceed six months.”

The Supreme Court Rule 296(f) Committee Comments, in part, state: “This paragraph applies only to the short-term inability of the obligor to pay support due to temporary layoff from employment or other factors. It recognizes that obligors often become temporarily unemployed, rendering them unable to meet their support obligations. This provision is short of written modification of the Order for Support. It allows the obligor to petition the court, prior to the filing of a petition for adjudication of contempt, for an opportunity to repay those amounts in small increments after employment is regained.”

Supreme Court Rule 296(n) states: (n)Effective Date. “The Supreme Court will authorize experimental sites to operate pursuant to the rule, in countries in which both the child circuit judge and the clerk of the circuit court have agreed to undertake the experimental use of the procedures contained herein, and have jointly sought the Court’s permission to do so, by filing a petition with the administrative director.”

So far, only four downstate counties have formally applied and are operating under Supreme Court Rule 296(f), namely, DeWitt, Douglas, Moltry and Piatt Counties.

No counties have applied since 1997. Counties such as Cook, Lake, and DuPage, not formally operating under the Rule 296(f) program, are authorized and routinely enter abatement orders pursuant to Supreme Court Rule 296(f) under the authority of two 4th District cases.

In Re Marriage of Fink 275 Ill.App3d 960 (Ill.Ap.4 Dist. 1995); In Re Marriage of Horn, 272 Ill.App.3d 472 (Ill.App.4 Dist. 1995) (although county had not petitioned the Supreme Court to adopt all provisions of Rule 296, the existence of the rule… provides authority for any court to do the same in appropriate circumstances irrespective of whether the county is operating under the broader provisions of the rule).

However, the applicability of Supreme Court Rule 296(f) has been recently questioned by the 3rd District Appellate Court in the case of In Re Marriage of Reimer, 2009 WL 160915). In Reimer, a Will County trial court ordered payment of child support arrearages based on an order abating the ex-spouse obligor’s payment of child support. The 3rd District Appellate Court declined to follow the 4th District’s opinions of Fink and Horn, sating that the 4th District’s holding simply ignore the expressed language of Rule 296(n).

Consequently, the 3rd District reversed the trial court and remanded with instructions for the trial court to conduct a hearing in order to determine what effect, if any, the abatement order had upon the support order at issue, specifically stating that the finding should be made absent any consideration of Supreme Court Rule 296 due to the fact that it was not in effect in Will County at the time the pleading seeking to collect the child support arrearages was filed.

Allowing the obligor to abate his or her support obligation is an important tool for divorce courts especially in these tough economic times. As the Reimer court suggests, the time has come for our supreme court to examine the overall applicability of Rule 296.