Member Groups

The Challenge
The newsletter of the ISBA’s Standing Committee on Racial and Ethnic Minorities and the Law

January 2019, vol. 29, no. 2

Getting ‘put on papers:’ The case against informal support arrangements

I recently came across a particular term while talking with a male member of the community that struck me as new and interesting. Subsequently, an initial intake with a potential client took a whole new direction when that same term reared its ugly head again. The term I am referring to is colloquially known as “[being] put on papers” The term “put on papers” refers to the documented order for child support payments (and typically the trail of enforcement and modification proceedings that follow) that is generated by either an administrative agency or a court.

Based on my conversations with clients and professionals working in the child support arena, as well as my own “complicit” involvement in child support proceedings, I suspect that something that was intended to be an equitable remedy to prevent over dependence upon social welfare programs, and to ensure that children are provided the basics of life, has evolved into a bureaucratic disaster. This particular bureaucratic disaster is now something that most parents would rather avoid completely. Inefficient administration, disparities in justice, and discretionary relief have made the child support system synonymous with hassle and poor results, all while sparking informal, self-help measures to avoid it. Such self-help commonly includes informal support arrangements between parents wherein the obligor will make some sort of direct payment to the obligee in lieu of filing for child support, and thereby involving a court or the legal system.

I am a realist. Every day I see the frustrations of the child support enforcement system: inaccurate income withholdings and accountings; incarceration and contempt findings; oppressive garnishments; lack of control over when funds will be disbursed; lengthy court proceedings and continuances – and the list goes on. And because of the disproportionate rate of incarceration for African-American litigants, members of the African-American community, in particular, are rarely willing to voluntarily enter a courtroom for legal proceedings of any kind.

Despite the frustrations and inadequacies of the legally enforceable child support system, there are several substantial drawbacks to informal child support arrangements.

Incorrectly Calculated Payments

Every state has a method applied to determine the amount of financial contribution due from a parent with a duty to support.1 There are three primary methods to determine child support: income shares, percentage model, and the Melson Formula2. Informal payments may be based upon what the non-residential parent is able to or chooses to pay. Informal payment agreements frequently involve arbitrary payment calculations, with a high probability that the payment would be either more than is required or less than required by the law; in other words, something other than what would have been ordered in a formal Court proceeding. Under this scheme, someone will get the short end of the proverbial stick.

Setting the Status Quo

An informal agreement that pays too much can be difficult to erase. In Domestic Relations law, status quo is often the lens used to determine what is in the best interest of the child. If an informal child support arrangement yields higher support than a court would order under the statutory scheme, a court would reasonably enter a finding of an increased ability to pay based on the informal payments. This finding would then be the basis to support an upward deviation from the support guidelines and lock an parent/obligor into a higher payment.

No Credit for Informal Payments

Some states, such as Texas, are clear about their disfavor of informal payments.3 Because Illinois does not statutorily or judicially prohibit informal payments, the judges are then vested with the discretion to consider such payments as merely a gift. Illinois requires that child support be based on the requirements of Section 505. Any payments made that do not conform to the statutory duty, is by definition NOT child support and may be considered not as child support but rather a gift.

No Tolling Effect

An initial order of support necessarily makes certain findings, such as parentage, and starts the clock on the legally cognizable obligation to provide financial support4. Child support orders are therefore useful in establishing certain timelines for enforcement and modification proceedings. Informal child support arrangements, which later become formalized, can create difficulty in determining the appropriate length of retroactivity. For example, the Illinois Parentage Act of 2015 allowed the State’s Attorney to relate a child support order back to the date of birth instead of the date of filing of the petition for child support. Under this law, obligors who made informal child support payments could be found to be delinquent and assessed to owe child support arrearages even during the years when informally agreed upon financial support was provided. Thus, an initial support order could potentially include thousands of dollars in arrearages and a finding of delinquency from the outset – all despite the fact that the child had been financially supported during the time between birth and the support order. On the other hand, any subsequent filings pertaining to a formal support order would relate back to the date of the prior order, or the date of notice.

Increased Parental Conflict

Informal child support arrangements likely begin with parties who are amicable enough to come to mutually agreed upon terms. However, in many instances, due to lack of consistency and oversight, the relationship can quickly break down. Unlike an actual child support order, the parties to an informal arrangement have no intermediary for redress and must rely on resolving disputes and modification between themselves. This is a difficult task when emotions are involved and can quickly lead to the breakdown of the co-parenting relationship. On the other hand, a formal agreement allows for objective standards to be utilized in equitable decisions regarding the duty to support. A formal child support order simply makes one less thing for the parties to dispute because someone with enforceable legal authority has already decided what, when, and how the support should be made, and the issue is simply not open for discussion at the dinner table or parenting time transitions.

Conclusion

It is unlikely that informal arrangements are going to disappear completely, and they are necessary in some instances, such as in rural counties where transportation and access to the judicial system are impaired, or when the obligor parent is underemployed or unemployable. However, the intended goals of these arrangements, to bypass the judicial system, can be frustrated or exacerbated when the parties are forced to resort to an Illinois court to accomplish the intent of the informal agreements. So, formalizing child support agreements, from the onset, can be a positive and protective measure for both parties, limiting the need for contentious interactions regarding child support, thereby allowing parties to focus their energy on co-parenting and maintain a sense of respect and normalcy for their children.


 

2. Id.

3. Tx. Fam. Code 154.009(c). “Unless the Title IV-D agency is a party to an agreement concerning support or purporting to settle past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support that the agency may request.”

4. Important to note that once the parent child relationship is established in a child support action, that finding relates back to the date of birth in most states.

Member Comments (1)

Appreciate this prespective, Sherlyn.   I have forwarded a copy to a couple of clients today.   If you have not already thought about it, I would suggest that you also seek to have your article published in the Family Law Section's Newsletter.   It would be great to see some public education intiative around these ideas to keep families out of conflict and out of the system.