In the Bible, the Book of Job is about a man who suffers a series of horrible tests in order to prove that he is worthy. In an Illinois divorce, a job diary is quite similar.
When one party in a divorce is unemployed or underemployed, an Illinois divorce hangs in limbo because that party’s income cannot be determined for the purposes of child support, maintenance, marital property allocation and contribution to college 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)
Even division of marital assets requires a court to consider the parties’ income and employability. Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:…the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties” 750 ILCS 5/503(d)
Until both parties true earning potential is determined, an Illinois court cannot make final determinations and the fully employed party will be reluctant to settle under the current employment circumstances.
Illinois divorce courts are empowered to order the unemployed or underemployed party to complete a job diary.
A job diary’s purpose is threefold: 1) to employ the party, 2) to prove the party can or cannot find a job, and/or 3) to prove the party refuses to find appropriate employment.
An Illinois Divorce Court’s Authority To Order A Job Diary
During the course of an Illinois divorce, “Either party may petition or move for… appropriate temporary relief” 750 ILCS 5/501(a)
This is statute is extremely broad…and, as temporary relief, probably only applies before the divorce is granted. Still, a broad grant of power to a court is power that must be observed if the trial court chooses to wield that power.
To avoid a job diary…get a job. Failing that, the court can specifically order a job diary only if you are truly unemployed.
“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)
This statute only requires the person who would OWE support to use a job diary. The person asking for support cannot be ordered to get a job diary under this statute.
This begs the question what is “unemployed.” Is it working part time? Is it having a job that is beneath your capacity? Is it working for yourself?
If you’re working for yourself, a court is only specifically empowered to order a job diary after a self-employed party has fallen behind on a current child support order.
“If a parent who is found guilty of contempt for failure to comply with an order to pay support is a person who conducts a business or who is self-employed, the court in addition to other penalties provided by law may order that the parent… seek employment and report periodically to the court with a diary, listing, or other memorandum of his or her employment search efforts” 750 ILCS 5/505(b)
Imputing Income After A Job Diary Is Ordered In An Illinois Divorce Court
In my 15 years as a divorce lawyer I have never seen someone say, “Boy, I’m sure glad I did that job diary the court ordered. It found my dream job and am now able to pay the maintenance and child support I should!”
Job diaries don’t get people jobs! Job diaries either prove that the reluctant job seeker is truly unemployable or that they are underemployed and should have their income imputed.
A job diary that extends for a year may finally prove that a person cannot work or cannot work beyond a particular level. This usually involves hundreds of rejections and numerous firings. This isn’t fun for anyone.
More likely, a job diary will help an Illinois divorce judge determine what the job seeker’s income should be if, in fact, they were dutifully seeking and finding appropriate employment. Once determined, that income will be “imputed” to that party.
“Imputation is appropriate in cases of voluntary unemployment or voluntary underemployment.” In re Marriage of Ruvola, 2017 IL App (2d) 160737
“Courts should consider the level at which the spouse is able to contribute, not merely the level at which he is willing to work.” In re Marriage of Blume, 59 NE 3d 135 – Ill: Appellate Court, 3rd Dist. 2016
“In order to impute income to a party, the court must find that the party is voluntarily unemployed, is attempting to evade a support obligation, or has unreasonably failed to take advantage of an employment opportunity.” In re parentage of M.M., 2015 IL App (2d) 140772, ¶ 44, 390 Ill.Dec. 927, 29 N.E.3d 1197.
“For the purpose of imputing income, a court must find one of the following: (1) the payor has become voluntarily unemployed, (2) the payor is attempting to evade a support obligation, or (3) the payor has unreasonably failed to take advantage of an employment opportunity.” In re Marriage of Blume, 59 NE 3d 135 – Ill: Appellate Court, 3rd Dist. 2016
In one Illinois divorce case, the court found that the job diary was crucial evidence in determining the party’s unwillingness to work to their potential. “The trial court found that petitioner displayed a “lack of effort…in obtaining employment” and is “voluntar[ily] underemployed.” The court noted that “much of [petitioner’s job-search diary] appears to be attempts to obtain part time work in the food industry — with no connection to the Petitioner’s experience or education.” Referencing petitioner’s self-designation on his business card as semi-retired, the court asked, “What employer would want to hire such an applicant for full time gainful employment under those conditions?” The court noted that, despite petitioner’s attempted suicide and subsequent psychiatric treatment, he “appears to be healthy and able to sustain employment.” The court imputed to petitioner yearly income of $25,000.” In re Marriage of Ruvola, 2017 IL App (2d) 160737
Illinois divorce courts will look at past employment and education to determine what type of position a party should be working in.
“The court was indeed justified in finding that petitioner is voluntarily underemployed, because of his failure to seek a position within his field of training.” In re Marriage of Ruvola, 83 NE 3d 19 – Ill: Appellate Court, 2nd Dist. 2017
Until an imputation of income is finally made, the job seeker should be off the hook for paying child support beyond what they currently earn.
A “court [can] reserve the issue of child support until [a spouse is] employed and order[ that spouse] to maintain a job diary” Shen v. Shen, 35 NE 3d 1178 – Ill: Appellate Court, 1st Dist., 3rd Div. 2015
What Happens If A Spouse Doesn’t Maintain A Job Diary During An Illinois Divorce?
As described above, the court will simply impute an income to that spouse for the purposes of support and division of assets.
If the other spouse is feeling petty or truly believes in their former spouse’s career prospects, they may ask the court to find the reluctant job seeker in contempt of court.
If a party “was required, by court order, to continue to search for employment…[their] failure to do so might be contempt of the court’s order.” In re Marriage of Reimer, 902 NE 2d 132 – Ill: Appellate Court, 3rd Dist. 2009
A finding of civil contempt for failure to follow a court’s order can allow the court impose fines and/or jail time.
A civil contemnor “are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)
The reluctant job seeker is not going to be able to pay a fine or find a job if they are in jail…so don’t expect a judge to order much from a finding of contempt beyond an order for attorney’s fees.
I tell my clients, “This is America! No one ever came here for the scenery. We are all here to work.”
Despite this, you cannot make people work that don’t want to work. You can make them look for work, though.
In the immortal words of a 1950’s doo wop group:
“Lord, and when I get the paper I read it through and throu-ough
My girl never fail to see if there is any work for me…
I better go back to the house, hear that woman’s mouth
Preachin’ and a cryin’, tell me that I’m lyin’ about a job
That I never could find” The Silhouettes, “Get A Job,” single, 1958.
If you want your spouse to get a job or a better job contact my Chicago, Illinois family law firm to force them to find the job of YOUR dreams or at least impute the appropriate income to them.