NHL Lockout Affects Support Proceedings

Article originally appeared in the September 25, 2012 issue of the Chicago Daily Law Bulletin written by Thomas F. Villanti and Evan D. Whitfield


At 12:01 a.m. on Sept. 16, the Collective Bargaining Agreement between the NHL and the NHL Players Association expired without a new agreement in place, causing the owners to lockout the players for the second time in eight years; the last lockout resulted in the cancellation of the entire 2004-2005 NHL season.

Despite the turmoil that the lockout will cause, specifically, an empty United Center and long periods of boredom north of the U.S. border, some things can be expected to remain the same: An empty Jobing.com Arena (home of the fanless Phoenix Coyotes) and numerous court filings by professional hockey players in an attempt to modify child support obligations based on a substantial change of circumstances, being the 2012 NHL lockout.

With both the NFL and the NBA being involved in labor disputes last year, many articles were written regarding modification of existing child support obligations based on the work stoppage being a substantial change in circumstances that justified a modification in support payments. Although the NHL may not have as many fans as other sports, the effect on child support proceedings will be just as dramatic.

In Illinois, Section 5-510 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) sets the parameters for the “modification and termination of provisions for maintenance, support, educational expenses and property distributions.” 750 ILCS 5-510. Specifically, 5-510(a) states that an order of child support may be modified upon a showing of a substantial change in circumstances.

Typically, a substantial change in circumstances is seen in involuntary job loss (In re Marriage of Wiley, 199 Ill.App.3d 223 (1990)); moving states to pursue an alternative employment opportunity (In re Marriage of Caris, 150 Ill.App.3d 812 (1986)); returning to college to supplement one’s education (In re Marriage of Webber, 191 Ill.App.3d 327 (1989)); becoming self-employed (In re Marriage of Hardy, 191 Ill.App.3d 695 (1989)); or retiring (In re Marriage of Waldschmidt, 241 Ill.App.3d 7 (1993)). A less typical justification for a modification for child support is the involvement of the payor in a labor dispute.

In determining whether to grant a request to reduce child support, a trial court may consider “any substantial economic reversal resulting from a good faith, voluntary change of employment.” In re Marriage of Horn, 272 Ill.App.3d 472, 476 (4th Dist., 1995).

The court will consider whether the decision that resulted in the “substantial economic reversal” was “prompted by a desire to evade financial responsibilities for support of the children.” Id. at 476. There are a few subtleties that may prevent a professional athlete from filing a petition for modification of child support prior to the scheduled start of a player’s regular season. First, a petitioner must usually wait to file his or her petition until a time when the actual change in his or her economic condition begins rather than predicting for a future substantial change in circumstance. The reason being is that the bargaining agreements in most professional sports, hockey included, call for players’ pay to begin after the start of the regular season.

Although it is ultimately a question of fact for the court to determine, a player may be hard pressed to show a substantial change in circumstances prior to a season being scheduled to begin if he had not received a paycheck since the last day of the season months before. That being said, because modifications are retroactive to the date of filing of the petition and these proceedings typically last many months, a player may want to consider filing the petition for modification shortly after the stoppage occurs. See Horn, 272 Ill.App.3d at 478.

Second, despite the fact that Section 5-505(a) of the IMDMA only explicitly states that child support is to be paid from income, Illinois case law does not preclude a trial court from ordering the payment of child support from one’s assets. Since the average hockey salary in 2012 was in the neighborhood of $2 million, many players’ accumulated assets may prevent them from showing a substantial change in circumstances that would prevent them from meeting their pre-existing child support obligations.

The temporary nature of labor strikes may prevent NHL players from being successful in an attempt to reduce support.

Illinois courts have clearly stated that the mere fact of a strike does not automatically require a reduction in child support. See Horn, 272 Ill.App.3d at 477.

While a shorter lockout, such as the one experienced by the NFL in 2011, may not warrant a modification, the NHL’s last labor dispute resulted in the entire 2004-2005 season being canceled. Whether the lockout itself justifies a modification is a question of fact where a NHL player would provide evidence of the severity and duration of the 2004-2005 lockout. The decision to modify an existing child support order is within the discretion of the trial court. NHL players concerned about making ends meet in the presence of a looming and possibly prolonged work stoppage would do well to closely scrutinize their personal balance sheets prior to skating into court and making a quick slap shot decision demanding to reduce the support payments that support their children.

A rock solid financial disclosure statement clearly showing a substantial change in circumstances and the lack of other assets from which to defray support obligations will go a long way in persuading a court to grant a locked out player’s petition for modification.

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