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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 37885
Experience:  I provide family and divorce law advice to my clients in my firm.
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In regard to Illinois law in Section 505 of the Marriage and Dissolution Act, can the sup

Resolved Question:

In regard to Illinois law in Section 505 of the Marriage and Dissolution Act, can the supporting parent's expenses paid for childcare be deducted in calculating monthly net for additional income owed?

We were advised that he can deduct his portion of health insurance premiums for the child prior to calculating 20% of additional income for support, but have not gotten an answer regarding deducting child care expenses. He is not able to take the Dependent Care tax credit on his federal return, because he is not the primary custodial parent, so it is not as if he would be deducting this expense twice (from additional support and on his tax return).
Submitted: 2 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your question. I will do my best to assist you with your concerns. If you would like me to clarify my answer, I will be happy to do so.

To answer your question directly, child care expenses are not deducted because they are considered an additional cost. Medical insurance, for example, is considered an expense that is a standard deduction because there is a monthly or a periodic cost. Child care expenses are considered optional and not deducted as they are not deemed part of the net modification of income.

I am sorry.



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Customer: replied 2 years ago.

I have been reading into case law regarding this matter and this is what I have found:


 


Child Care Expenses: In IRMO Stanley, 279 Ill.App.3d 1083, 216 Ill.Dec. 890, 666 N.E.2d 340 (4th Dist. 1996), one deduction from gross income was "day care contribution", per IRMO Serna, 172 Ill.App.3d 1051, 123 Ill.Dec. 164, 527 N.E.2d 627 (4th Dist. 1988). Stanley suggests in dictum that a justification for deducting the child care contribution is subparagraph (a)(2)(h) of §505, which authorizes a deduction for "reasonable expenditures for the benefit of the child and the other parent." Child care expenses are certainly reasonable expenses for the benefit of the child and the other parent. The problem is setting child support at a dollar certain while allowing a deduction for child care expenses in determining net.


 


In our case, we are not looking to to reduce the base child support amount, but make sure that we are making any and all allowable deductions from the 20% support from additional income.


 


So, this expense that is a reasonable expenditure for the benefit of the child and other parent is not applicable?

Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up, Lori.

As a basis for just deductions for tax purposes, that is permissible, but I thought from your question you were asking about lowering the income amount on which the child support basis is calculated on. If you were asking about tax benefits, that permitted, but if you meant to recalculate based on a new baseline for child support, that is not allowed or otherwise permitted.

Hope that clarifies.
Customer: replied 2 years ago.

To clarify,


 


NO, not for reducing base support. However, my husband earns commisions in addition to his base salary. Per the MSA, he is to pay 20% of his additional income (which varies from month to month) minus the allowable deductions set forth in Section 505 of the Illinois Marriage and Dissolution Act.


 


He pays a pro rata portion of childcare; however, he is not able to deduct this on his tax return as he is not the primary custodial parent. His former wife can deduct the allowable amount of her daycare expenses on her return, however he cannot.


 


So, in calculating the 20% of additional support, whereas he can subtract health premiums paid in calculating his net income, we want confirmation as to whether or not he may also subtract his portion of child care expenses paid in calculating his net income for additional support based upon the defined allowable deductions.


 


Sorry if I was not clear. Can you confirm this based upon Illinois state law?

Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up, Lori.

It is perfectly clear at this point, thank you for the clarification, since we work in an imperfect medium, we are not always able to directly and correctly communicate the first time we post, and why clarifying posts such as this are so important. Thank you for working with me on this.

To respond directly, such deductions CAN be made as they are legitimate expenses based on his additional support. Such deductions are permitted federally and under the state guidelines.

Good luck.
Customer: replied 2 years ago.

So, just to make sure I understand before I let you go....


 


When he calculates his montlhy additional income above and beyond his base salary and court-ordered base child support, he may subtract his portion of child care expenses to determine the net of that additional income before calculating the 20% he must pay for additional support each month.


 


I promise this is the last reply. I just want to make sure we are understanding each other.

Expert:  Dimitry K., Esq. replied 2 years ago.
No, he cannot Lori. This is NOT permitted under the law. The 20% is a flat 20% above his income, it does not get lowered for calculations, which is what I stated in my first response. For example if your spouse's support payment is $1000 a month for base pay and 20% anything that he earns over $6,000, and he comes home with $7,000, the $1,000 is used as a flat basis, meaning he is going to be liable for $200, not $180 if he has an additional $100 in child care expenses. For tax deductions he can lower the expenses, but not as a basis for support.

Good luck.
Customer: replied 2 years ago.

How familiar are you with Section 505 of the Illinois Marriage and Disolution Act. It clearly states in his MSA that he pays monthly installments in the amount of 20% of his additional income MINUS the applicable deductions set forth in Section 505.


 


(3) "Net income" is defined as the total of all income from all sources, minus the following deductions:


 


(a) Federal income tax (properly calculated withholding or estimated payments);
(b) State income tax (properly calculated withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual health/hospitalization insurance premiums;
(g) Prior obligations of support or maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.





Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up, Lori.

I am very familiar with the act, and understand how the calculations are done. I have the act open in front of me as you do, and am basing my answer on the fact that those expenses are not directly listed as attributed to the calculation deduction. It appears that you are seeking an answer from me which I professionally cannot provide you, as I believe that you are mistaken in expecting that Act and that section to permit you not calculate those benefits are done. While you are free to seek a second opinion, this is NOT a valid deduction under the act, and I politely stand by my original answer, and my subsequent clarification.

Good luck.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 37885
Experience: I provide family and divorce law advice to my clients in my firm.
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