Over the last several months, the Illinois Appellate Court has had numerous opportunities to opine on what constitutes income for purposes of calculating child support under the Illinois guidelines. Under certain circumstances, retirement benefits, social security benefits, stock options sales proceeds, and loan proceeds have all been declared to be includable in the calculation for child support. In the case of In re the Marriage of Marsh, 2013 IL App (2d) 130423, the Court again revisited the issue, this time in the context of money a father received from the sale of stock. The Court ultimately concluded that the monies received from the sale of the stock were not income for purposes of calculating child support because the proceeds were received in exchange for an asset owned prior to the divorce.
Under these particular set of facts, pursuant to the judgment for dissolution of marriage, the father was ordered to pay the mother child support of $731 per month as well as 20% of all additional income. After the father received $275,000 of sales proceeds from the sale of stock and he failed to pay the mother 20% of the proceeds, the mother sought to hold him in contempt of court.
Making the issue confusing is the fact that the relevant Illinois child support statutes do not define “income.” Therefore, the Courts have had to make case-by-case determinations based on the individual facts as to what exactly constitutes income. In In re Marsh, the Court evaluated whether the sales proceeds from the stock were new monies received as a return on investment or capital, thereby increasing the father’s wealth. The Court ultimately decided that the conversion of the stock to cash did not result in a “gain” to father because the cash proceeds simply took the place of the stock. Therefore, the father did not have to pay 20% of the sales proceeds in child support.
However, in prior cases, the Illinois Courts have held that many forms of non-employment related income is income for purposes of support, including sales proceeds from unvested stock options, social security disability payments, retirement proceeds, and loan proceeds. It appears that the Courts generally evaluate the totality of funds available to a support payor and then decide what should constitute support and whether adjustments should be made to the guideline formula. For example, if a support obligor is not employed in a traditional sense, but is living by liquidating his or her own assets to support their lifestyle, he or she should not be absolved of their child support obligations just because they decide to live off assets rather than seeking employment. While the application of statutory guideline support may not generate an appropriate amount of support in that circumstance, the court has the authority to deviate from the statutory guideline formula so long as the appropriate findings are made.