Every marriage has roles and responsibilities. Often, one party to a marriage ends up being the breadwinner or sole earner in the house while the other party takes care of the home and possibly the children. So much of an Illinois divorce’s mechanics are based on the incomes of the parties that a non-working spouse becomes the most salient issue to a case. So, what can you do if your spouse doesn’t work and you want a divorce in Illinois?
Maintenance/Alimony in Illinois With A Non-working Spouse
The biggest income related issue in an Illinois divorce is maintenance (formerly known as alimony)
“The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:” 750 ILCS 5/504(a)
- The income and property of each party
- The realistic present and future earning capacity of each party
- Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage
- Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought
- The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment
- The standard of living established during the marriage
- The duration of the marriage.
- The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party
- All sources of public and private income including, without limitation, disability and retirement income
- Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse
- Any valid agreement of the parties
- Any other factor that the court expressly finds to be just and equitable
These are just the factors to consider if the court is going to award maintenance. The court can consider one or all of them when deciding “is this a maintenance case?”
After a quick count, a non-working spouse could be fit into 9 of the 12 factors that an Illinois divorce court is allowed to consider when deciding whether or not to award maintenance.
So, if your spouse wasn’t working and isn’t working, you’re going to pay maintenance in Illinois.
If you make more than $ 500,000 a year, the Illinois divorce court has the ability to pick a maintenance amount for the non-working spouse that the divorce judge considers fair. But the judge has to make a finding and explain why that amount of maintenance is fair and base it on the factors I listed above.
“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors” 750 ILCS 5/504(b-1)(2)
If the parties earn less than $ 500,000 the maintenance amount is a pure calculation. So, If your spouse isn’t working and you’re earning less than half a million a year, you have to follow the formula.
The formula is simple 33% net of your income minus 25% net of the non-working spouse’s income. 25% of nothing is zero…so that part of the equation is easy.
But, it’s not always zero.
Imputing Income To A Non-Working Spouse In An Illinois Divorce
If your spouse isn’t working, you can sometimes reduce or avoid maintenance and/or child support by imputing income to the non-paying spouse.
“To impute” means “we’re going to pretend like it’s true because it should be.” So, when an Illinois divorce court imputes income to a party, the court is saying, “We know you should be making this much…so, when we calculate your maintenance, we’ll pretend that you do.”
For child support, there is a statute in Illinois that imputes the income of a non-working spouse.
“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)
The Illinois Supreme Court further laid out when you can impute income in In re Marriage of Gosney, 394 Ill.App.3d 1073 (2009). The test for imputing income to a non-working spouse in an Illinois divorce is as follows:
1) where the obligor voluntarily becomes unemployed;
2) where the obligor is trying to avoid having to pay support; and
3) where the obligor hasn’t accepted an offer or opportunity for employment. If these factors do not apply, income cannot be imputed.
This rule is especially powerful and accurate if your spouse quits their job during the divorce. You would then know exactly how much they did earn and should earn.
So, an Illinois divorce court can say, “I know you’re an unemployed househusband but you have a Master’s degree and used to be an executive. So, we’re going to reduce your maintenance by 25% of what we think you should be making if you were working.”
In my experience, most Cook County judges impute the non-working spouse’s income at minimum wage until the unemployed spouse actually get a job. On July 21, 2020 in Chicago, Illinois minimum wage will be $ 14 an hour. That’s $ 28,000 a year. 25% of $28,000 is $ 7,000. The maintenance you owe will probably be $7,000 or $ 583 a month less than what it would have been if you are able to impute income to your spouse in your Illinois divorce.
Minimum wage is not always the standard income imputation rate. “The amount of income imputed by the court must be supported by evidence showing that it is commensurate with the [spouse’s] skills and experience.” In re Marriage of Liszka, 2016 IL App (3d) 150238
A spouse cannot just take a part-time, minimum wage job and say “There, I’m working. Happy?” “Imputation is appropriate in cases of voluntary unemployment or voluntary underemployment.” In re Marriage of Ruvola, 2017 IL App (2d) 160737
If a non-working spouse is only recently non-working and used to make big money, you can reserve the issue of maintenance for a later date. “[A] “reserved-jurisdiction” approach to maintenance is appropriate in cases where the responsible party’s present ability to pay maintenance is limited.” In re Marriage of Wojcik, 362 Ill. App. 3d 144, 168 (2005)
So, if you’re looking for maintenance from a non-working spouse in Illinois, you can just force them to come back year after year until they get a good job (they always do).
Child Support And An Unemployed Parent in Illinois
Child support is calculated by comparing the two incomes of the parties in a byzantine formula which 99% of people just use a calculator to determine.
Child support also allows for the imputation of income per the statute.
But, you can avoid the calculations pursuant to the guidelines if you request the court to deviate from the guidelines.
“Duty of support. The court shall determine child support in each case by applying the child support guidelines unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors including, but not limited to, one or more of the following:
(A) the financial resources and needs of the child” 750 ILCS 5/505(a)(2)
If a parent is not working, the calculator is, essentially, broken. The needs of the child should be what determines the child support amount. If that’s the case, who cares if the parent is employed or not, they have to pay based on needs.
Typically, Illinois family law courts will use the parties’ financial affidavit to determine the needs of the child.
The counter-argument to the “needs of the child” argument is as follows: “You’re right, your honor, I should pay a portion of the needs of my child…a portion. Typically, parents pay based on a portion of their respective incomes. I am making nothing. How do we apportion that?”
Forcing Your Spouse To Get A Job In An Illinois Divorce
The law in Illinois “creates an affirmative duty on a spouse requesting maintenance to seek and accept appropriate employment.” In re Marriage of Liszka, 2016 IL App (3d) 150238
In the case of child support and maintenance, an Illinois court is permitted to order the unemployed spouse to maintain a job search diary. That is, the unemployed spouse has to keep returning to the court with a list of jobs they applied to until they have finally found a job.
“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” 750 ILCS 5/505.1(a)
I have been practicing family law in Illinois for 15 years. I have never once seen a job diary help someone find a job. People who don’t want to work will work very hard…to not work.
Invoking the job diary statute will just annoy your spouse and waste your time. They will always outlast you.
Prenuptial Agreements And A Non-Working Spouse In An Illinois Divorce
In theory, the solution to a spouse who refuses to work is to get a prenuptial or antenuptial agreement that says they aren’t entitled to any maintenance if you should divorce.
A truly non-working spouse can completely invalidate a prenuptial or antenuptial agreement.
Someone who is not working and cannot work (to an extent) can ask that a prenuptial agreement be unenforceable in Illinois.
“If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.”750 ILCS 10/7(b)
So, if you entered into an agreement and then your spouse becomes unemployed in a manner not foreseeable at the time the prenuptial or antenuptial agreement was signed, then the agreement could be unenforceable.
This is a really vague clause in the Illinois domestic relations statute that could work either way depending on the adept arguments of the parties’ divorce lawyers.
The Real Solution To A Spouse Won’t Get A Job In An Illinois Divorce?
People who don’t work are short sighted. They were not thinking about the future when they decided to stop working. Can you imagine not working and relying on someone else?
A short-sighted person will always take money today over money tomorrow. So, offer a spouse who refuses to work a greater share of marital assets in lieu of maintenance or alimony.
Remind them that maintenance is modifiable and can always change. You might lose your job or get a lower paying job. They might get a job and/or remarry or move in with someone else.
These are all big risk factors for a spouse that gets maintenance. Wouldn’t they rather just have some money up front and move on with their life without relying on you any longer?
If you’d like to talk about how to build a strategy regarding your spouse who refuses to work, contact my Chicago, Illinois law firm to schedule a consultation with an experienced Chicago divorce lawyer.