There are three quantifiable inputs in an Illinois divorce: 1) Time the children currently spend with each parent, 2) Marital assets and debts of the couple, and 3) The income of each party.
Everything else that determines the results of an Illinois divorce can be described qualitatively in words but not quantitatively in numbers.
This means the few solid numbers that a divorce litigant has available to them must be the bedrock of their divorce case.
Unfortunately, divorcing couples 1) play games with parenting time before court orders are established, 2) hide assets while revealing secret debts and 3) stop making as much money as they should.
Original parenting schedules always get revealed through a Guardian Ad Litem’s investigation. The true marital assets are revealed through forensic accounting. But, how do you prove that someone is not really earning the income that they’re supposed to?
Why Do You Need To Know Both Parties’ Incomes In An Illinois Divorce?
Both parties’ incomes determine the amount of child support, maintenance (formerly known as “alimony”) and children’s expenses.
In Illinois, “[t]he court shall compute the basic child support obligation by…determin[ing] each parent’s monthly net income” 750 ILCS 5/505(A)(1.5)
In Illinois, “[t]he court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:(1) the income and property of each party” 750 ILCS 5/503(a)
In Illinois, children’s “expenses shall be prorated in proportion to each parent’s percentage share of combined net income” 750 ILCS 5/505(a)(3.7)(B)
Therefore, it is imperative that each party to a divorce know for certain what their soon-to-be-ex-spouse’s income actually is.
Failing an accurate determination of a soon-to-be-ex-spouse’s income, a party can request that an Illinois divorce court “impute” income to the soon-to-be-ex-spouse.
The process by which an Illinois divorce court determines what a divorce litigant should make is called “imputing income.”
There are two reasons to impute income: 1) You don’t know what the person is really making or 2) The person is making less than they could BY CHOICE.
Imputing Income In An Illinois Divorce In Order To Determine What A Person Currently Makes
Some people’s finances are a mess. Or they only get paid in cash…and then they spend that cash before it gets counted.
“If present income is uncertain, a court may impute income to the payor.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009)
To determine someone’s current income for child support or maintenance purposes, Illinois divorce law looks at their past income.
“[W]hen a party’s current income is difficult to ascertain or uncertain, a court may consider [the party’s] past earnings.” In re Marriage of Gabriel, 2020 IL App (1st) 182710 (Citations Omitted).
The past income should not be from too far back (like a housewife who hasn’t worked in years).
“When calculating the amount of income to impute, the trial court may consider the supporting parent’s income from previous employment. However, a court should not base its income calculation on outdated data that no longer reflect prospective income.” In re Marriage of Liszka, 2016 IL App (3d) 150238, ¶ 47
“Moreover, when a party’s income fluctuates from year to year, income averaging is an approved method to apply in determining the party’s current income.” In re Marriage of Gabriel, 2020 IL App (1st) 182710 (Citations Omitted).
The individual judge can look as far back to the divorcing party’s income history as they believe is necessary…but 3 years is the minimum look back period.
“[A]t least the three prior years should be used to obtain an accurate income picture.” In re Marriage of Freesen, 275 Ill. App. 3d 97, 104 (Ill. App. Ct. 1995)
Of course, people who can’t accurately determine (or voluntarily tell you) their current income usually lost (or were hiding) income for years in the past as well.
When the past won’t allow you to adequately impute present income, potential income has to be estimated by the court.
Imputing Income Based On A Spouse’s Potential To Earn Money
The Illinois Marriage and Dissolution of Marriage Act allows a court to determine what someone’s income should be for the purposes of calculating child support and maintenance (formerly known as alimony)
“If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community.” 750 ILCS 5/505(a)(3.2)
“[I]f a court finds that a party is not making a good-faith effort to earn sufficient income, the court may set or continue that party’s support obligation at a higher level appropriate to the party’s skills and experience.” In re Marriage of Sweet, 316 Ill. App. 3d 101, 107 (2000)
“It is well established that courts have the authority to compel parties to pay child support at a level commensurate with their earning potential. If present income is uncertain, a court may impute income to the payor.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009)
“The amount of income imputed by the court must be supported by evidence showing that it is commensurate with the supporting parent’s skills and experience.”In re Marriage of Liszka, 2016 IL App (3d) 150238, ¶ 46.
If a divorcing party is working at the job of their dreams (and always has) but simply doesn’t make enough money…that is not going to be a sufficient reason to impute a higher income. An Illinois divorce court must find that they are working at the job to purposely avoid paying support or that their failure to find higher-paying work is “unreasonable.”
“Illinois appellate courts have developed three primary factors to consider in determining when it is proper to impute income to a noncustodial parent. In order to impute income, a court must find that one of the following factors applies: (1) the payor is voluntarily unemployed ( In re Marriage of Adams, 348 Ill. App. 3d 340 (2004)); (2) the payor is attempting to evade a support obligation ( Sweet, 316 Ill. App. 3d 101); or (3) the payor has unreasonably failed to take advantage of an employment opportunity ( In re Marriage of Hubbs, 363 Ill. App. 3d 696 (2006)). If none of these factors are in evidence, the court may not impute income to the noncustodial parent.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009)
“Unreasonably [failing] to take advantage of an employment opportunity” will require the testimony of someone who is willing to offer them a higher paying job or an expert’s testimony that higher paying jobs exist.
The court will then have to determine if it is reasonable for that party to pursue or accept that job. If it was reasonable for the divorcing party to have that job during the marriage, it’s probably reasonable for them to maintain that job after the divorce.
The decision of a court to impute income in an Illinois divorce comes down to whether the court believes that the income currently generated is done “in good faith.” Good faith means the job (and its salary) was not taken in order to reduce support.
“Good faith is not shown where it can be determined that the change has been prompted by a desire to evade financial responsibilities to the supported spouse.” In re Marriage of Kowski, 123 Ill. App. 3d 811, 814, 463 N.E.2d 840,843 (1984)
What Is The Minimum Imputable Income In An Illinois Divorce?
While one spouse is always trying to impute income to the other spouse, the other spouse may want to minimize the imputable income.
Usually, a non-working spouse can settle on minimum wage ($ 15 an hour in Chicago is $ 600 a week, $ 2598 a month or $ 31,176 a year) but if you are feeling bold…you can go even lower.
“If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community. If there is insufficient work history to determine employment potential and probable earnings level, there shall be a rebuttable presumption that the parent’s potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.” 750 ILCS 5/505(a)(3.1)
What is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person (which is $ 14,580)? It imputes an income of only $ 10,935 under 750 ILCS 5/505(a)(3.1).
| Aspect of Imputing Income | Description |
|---|---|
| Imputing Based on Past Earnings | Courts may look at past income when current income is uncertain, using at least the past three years as a reference. |
| Imputing Based on Potential Earnings | If a spouse is voluntarily underemployed, the court may impute income based on their skills, work history, and job opportunities. |
| Minimum Imputable Income | The minimum imputable income may be based on full-time minimum wage or, in some cases, as low as 75% of the federal poverty guideline for one person. |
How Imputing Income Really Works In An Illinois Divorce
Without an expert’s testimony, it is almost impossible to get a court to impute significant income to a divorcing party. There are simply too many variables.
Illinois divorce courts, instead, usually impute the non-working party’s income to working full-time at minimum wage.
Then, the court may try to nudge the allegedly under-earning spouse to look for a better job by ordering a job diary.
“Whenever it is determined in a proceeding to establish or enforce a child support or maintenance obligation that the person owing a duty of support is unemployed, the court may order the person to seek employment and report periodically to the court with a diary, listing or other memorandum of his or her efforts in accordance with such order” 750 ILCS 5/505.1(a)
A job diary requires a spouse to get appropriate employment. An imputation of income presumes what the appropriate employment should be.
A “courts’ authority to compel parties to family law proceedings to seek more lucrative employment, or to pay support at a level as if they had done so, is well established” In re Marriage of Sweet, 316 Ill. App. 3d 101, 106 (Ill. App. Ct. 2000)
As such, a job diary is ultimate defense against an imputation claim. After returning to court with a filled-out job diary…but no job, the underemployed spouse has sufficient evidence to rebut any request for imputation.
Therefore, the only way to adequately impute income beyond the minimum wage is to hire a vocational expert to provide testimony that will rebut the underemployed spouse’s testimony.
Vocational experts costs anywhere from $ 3000-$5000 and the vocational expert will need your lawyer’s help to depose the underemployed spouse in order to get sufficient evidence of their skills, work-history, etc. So, expect to spend $ 10,000 to prove your spouse won’t get a better job.
Is the expense of a vocational expert worth it? Maybe. Crunch the numbers to determine what you would save in support over the years.
If you’re trying to impute income to your ex-spouse or you are trying to prevent your ex-spouse from imputing income to you, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.
