By WALTER D. JOHNSON
Noncompliance in payments Growing pains' in child support THE RATE of default in child support payments over the past decade has risen as fast as the rate of divorces. While the number of divorces being granted annually is ever increasing, it is alarming to discover perhaps half of the payments decreed by the courts for the support of the children are not being paid. In a recent series of investigations conducted by Sangamanon State University's Legislative Studies Center, the degree of noncompliance with court ordered child support payments was established in seven Illinois counties, and the results are highly representative of the nationwide trend. Two separate studies were conducted using different base years, 1965 and 1970. In each instance the file of all divorces granted during the twelve month period were examined to identify those cases where children were involved and child support was ordered to be paid through the court. While payment through the court is discretionary in Illinois, approximately 60 per cent of the 1965 cases under investigation and 75 per cent of those in 1970 included this provision. Each individual payment record was followed from the time of ordered first payment through December 31, 1976, allowing for children who reached majaority for achieved emancipation during the study period. Full compliance in 1965 ranged from a mere 53 per cent in the year the divorce was granted to a low of 21 per cent 11 years later. For those divorces granted in 1970, the default rate is substantially higher. Only 43 per cent complied with the support provision in the first year. Full compliance dropped to 28 per cent by the end of the second year and to 19 per cent by the end of 1976. Both studies exhibited three basic traits. First, it was always the mother who received custody and the father who was liable for payment. Second, a substantial portion of those ordered to pay child support immediately disregarded their obligation. (In some counties as high as 45 per cent of the fathers never made a single payment.) Third, among those who had initially elected to pay, the decision to quit paying normally occurred between the first and fourth years and was less decisive. In effect, the payer would engage in a testing process whereby a payment would be skipped and in the absence of legal action, the procedure would be repeated in a few months. As the periodic misses went unchallenged, their frequency increased until eventually payment was completely stopped. This accounts for the initial rise and then the ensuing decline in the partial compliance column, and the steady increase in total default throughout the study periods. Permissive laws In comparing the two samples some alarming trends appear. The number of individuals disregarding the court order within the first year increased by almost 10 per cent between 1965 and 1970. In addition, noncompliance increased at a much faster pace in the 1970 sample. By the end of the study period, the latter group's default rate had surpassed the 1965 sample although only half as many years had passed since the order. While the increased incidence of divorce may itself have had some effect on the growth in support default, due to dissolution becoming more acceptable, the major culprit is a permissive legal system which in fact encourages non-compliance. In the area of child support, a serious discrepency has developed between the law in theory and the law in practice. While the court oversees the inclusion of child support in the marital settlement agreement, once the decree is entered, little if any followup occurs. The burden of collection is, in reality, transferred from the court, which supposedly oversees "the best interests" of the child, to the custodial parent who must pay the bills. Thus, the perseverance of the custodial parent rather than the seriousness of the court order becomes the key element. In order to force compliance, the recipient usually has to hire an attorney at her own expense. However, the absence of support quite likely places her in a marginal income situation which precludes her paying a retainer. In the event that she should have the funds to institute an action, the outcome is normally a court reprimand and an agreement by the defaulting payer to comply. Once dismissed, the process is likely to be repeated again and again until the custodial parent gives up. This explains the extremely low proclivity to even institute legal action as indicated in the last column of the tables. In those few instances where action was taken and nonpayers were cited, the process proved completely ineffectual. In every case, total default eventually occurred. If the husband has left the state, the recipient has even less control over the matter. In addition to having to institute her own action, both she and her counsel are subject to the enforcement considerations granted by the state's attorney office in the state where the husband has finally been located. The tendency in most jurisdictions is to assign interstate support litigation an extremely low priority. Compounding the issue of enforcement responsibility is the tendency to
WALTER D. JOHNSON April 1978/Illinois Issues/7 view the problem as strictly poverty related. This stems from an inordinate legislative preoccupation with the costs of welfare programs. Those who argue the poverty line note that the federal government has already funded a state-based child support enforcement program (P.L. 93-647) aimed at welfare recipients. Under the federal guidelines, a woman must sign over the right to prosecute a defaulting father to the state Department of Public Aid as a requisite for receiving assistance. Thus, it is often argued there is no need for any additional enforcement mechanism. Although it is true that a very high proportion of women receiving federal aid for dependent children (AFDC) are divorced and that a major factor in their seeking public assistance is the failure of their former husbands to pay support, it is incorrect to conclude that the majority of women who are victims of nonsupport are on public aid rolls. Divorce is not limited to the poor. It is much more prevelant in the sector of middle class Americans whose struggle for the "good life" has increasingly meant the employment of the wife outside the home. Employed women Recognition of this or at least of the heightened potential for women to enter the labor force has substantially altered the basis and the amount of financial awards in divorce in recent years. Alimony or maintenance, as it is now
called, is only infrequently given, and support allocations tend more and more to utilize the income differential principle. That is, the amount of the award no longer depends entirely on what the husband's income is but rather on the difference between the potential earning capacity of the mother and the resources required to maintain an adequate level of living for the children. In these instances, default, while having an adverse effect on the former wife and children, may not result in their seeking public assistance. Instead, it places them in what might be termed a "marginally poor" economic situation. With the mother working, family income is too high to qualify for aid but not enough to offer either upward mobility or security. Conversely, the payment of child support would not remove most of the divorced mothers currently receiving public aid from the program. A large portion of these families lived in poverty or near poverty conditions prior to the divorce. Recognition of this fact resulted in low-support awards to begin with. In relatively few instances would their payment result in ineligibility for the children. Instead any support monies received are generally directed to the Illinois Department of Public Aid to help offset the costs of AFDC. In these cases, responsibility for enforcement is transferred from one branch of state government to another and becomes internalized as an agency cost reduction program. Despite the constant verbage devoted to the issue of reducing public aid.
In a substantial portion of cases (sometimes as high as 45 per cent), the responsibility to pay child support as ordered by the court was immediately disregarded
8 /April 1978/ Illinois Issues expenditures in recent years, the Sanga-mon State studies did not detect any significant move in this direction. Although federal law governing enforcement has been in effect since and although Illinois had instituted a similar program on its own several years before this, less than 1 per cent of the commbined total of 1965 and 1970 cases identified as being in default were subject to intervention by the Illinois department of Public Aid. One of two conclusions can be drawn from this data. Either the Department of Public Aid is not following through on its responsibility to prosecute or there are great number of cases which do not involve public aid recipients. Preliminary data collected by the Legislative Studies Center indicates it is the latter. In either event, governmental action is needed. Defeated legislation In an attempt to rectify this situation, Rep. Herbert Huskey (R., Oak Lawn) introduced H.B. 2186 into the Illinois legislature in April last year. The bill would require all child support awards in Illinois to be paid through the respective court clerk offices. Upon recording default, either partial or in full, for any two such payments, the clerk would be required to initiate enforcement proceedings. Administrative expenses' of the program were to be funded through an additional one dollar assessment tacked on to every payment collected. In effect, court recording and disbursement of support awards would no longer be permissive and the burden of enforcement would be shifted back from the custodial parent to the judicial body which initiated the order. The bill met with very little opposite House and was passed on May 20 by a 146-4 vote. The Illinois Senate was a different matter. The Senate Judiciary Committee I, to which the bill was assigned for study, recommmended its passage on June 17, and then the bill began to meet stiff opposition. At first traditional arguments of the insignificance of the problem and its poverty base were used. As these charges were countered with available data on the severity of the problem, it became increasinglyclear that the real isssue was not whether the law was needed but how it was to be funded in Cook County.
The Chicago Circuit Court Clerk's Office has estimated that at least $2.7 million will be required in the first year to institute the proposed program in the Chicago area. While the one dollar charge provided for in the bill will eventually provide enough revenue to support the program, the clerk's office maintains it does not possess the necessary funds to invest in establishing the system. Consequently, unless the state is willing to appropriate the money, the county's senatorial contingent in the legislature will oppose passage. As a result, the bill has been returned to committee with the possibility of working out a financial compromise in the spring session. Upstate overload The immediate question is why is there such an inordinately high cost associated with implementation of a support enforcement program in Cook County. A partial answer lies in the legal community's approach to divorce. The permissive nature of the current law with regard to the courts role in child support has been interpreted quite differently in upstate Illinois. As indicated earlier, between 60 and 75 percent of the cases studied in downstate Illinois included a provision for court channeled collection. In Cook County, less than 1 per cent contained this directive. Only 287 out of a projected 108,000 eligible cases were being recorded by the Circuit Clerk's Office in Cook County in November of 1977. The failure of judges and lawyers to direct payments through the court in the past now confronts Cook County with the potential of a tremendous backlog of enforcement cases if H.B. 1286 should pass. Compounding this problem is the disproportionate number of divorces which occur in the county. Due to the heavy population concentration in the Chicago area, approximately one-half of all divorces annually granted in Illinois occur there. In each of the past four years, Cook County's total has exceeded 22,000. If current divorce trends continue the county's caseload could easily double by 1981. The financial implications are clear. Cook County is faced with the prospect of having to fund not only an administrative organization capable of handling its high annual divorce rate, but of also serving the tremendous support backlog which has developed from past inaction. The political implications are also clear. Unless the necessary funds are provided, the bill is unlikely to pass in its present form. One alternative, used so often in the past, is to exclude Cook County from the requirement. This would severely hamper the intent of the program, however. Aside from cutting the coverage of the enforcement program in half, potential interaction with the Department of Public Aid would suffer. Approximately three-quarters of the state's total AFDC caseload is located in Chicago, including one-half of the divorce generated assistance. On the other hand, funding only Cook County raises a question of equity. In effect, it rewards the county for not maintaining records in the past and penalizes those downstate jurisdictions with existing programs. Continued inaction For its part the state wants to get by, expending as little of its revenues as possible. This attitude accords little consideration to either the past irresponsibility of its actions nor to the potential for future savings. As one example, if the enforcement program simply increased child support collections by a minimal average of $20 a month for those 25,000 families on divorce-related AFDC, public aid expenditures in Illinois could be reduced by $6 million a year. At this rate, it would not take very long to overcome the initial cost of the program. Instead the debate goes on, the rate of default continues to grow, the court continues to shift the burden of enforcement on to the recipients and the children continue to be deprived of the financial support to which the law has so long implied they are entitled.
April 1978 /Illinois Issues/9
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