Things change when people get divorced. Whether it is the stress of a divorce or the conniving strategy, incomes seems to plummet during the divorce process.
In Illinois, income is what determines maintenance (formerly known as alimony) and child support. If your spouse suddenly is making less income, you’re going to pay more maintenance and/or child support or you will receive less maintenance and/or child support.
So, what can you do if your spouse’s income has drastically decreased during your Illinois divorce?
Income and Maintenance in An Illinois Divorce
In an Illinois divorce, maintenance is “calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/504(b-1)(A)(1)
If your spouse is making less income, they either pay less maintenance or receive more maintenance.
Income and Child Support In An Illinois Divorce
In Illinois, child support is calculated by combining both parents ‘incomes and applying them to a chart to determine how much child support the custodial parent is entitled to from the non-custodial parent.
If the non-custodial parent has 146 or more overnights with the child, a second calculation is made reducing the child support calculation.
No one uses the chart. We all just use an on-line calculator.
Your spouse’s income impacts the child support amount to be paid whether they are paying the support or receiving the support.
Imputing Income In An Illinois Divorce
One tool that an Illinois divorce court has to deal with the common and sudden reduction of income during a divorce is imputation of income.
Imputation of income is the court considering what the divorce litigant should be making and just treating that supposed income as the divorce litigant’s actual income.
Determining the amount to impute is not easy. You usually look to their previous income or their skill set. “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
There is a statute that allows for the imputation of income for the purposes of determining child support.
“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 real problem is when income is so variable that it’s hard to determine exactly what the parent/spouse’s income is exactly.
“In many cases, net income may be difficult to ascertain and an impediment to determining an award of support. 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)
“[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)
Specifically, the court can use averages of years prior to the year(s) of the divorce in order to determine present day income. “[W]hen a party’s current income is difficult to ascertain or uncertain, a court may consider [the party’s] past earnings. 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 number of years to average is up to the individual divorce judge but “at 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)
This seems easy. You can just tell the judge, “Your honor. He made $100,000 every previous year and now he’s making $ 50,000” and the judge will just impute an extra $50,000 in income to the party with the reduced income.
This works when the divorce litigant has a reduction in income because of a new job (or no job). Imputation, however, cannot be applied when the divorce litigant is in the same employment with a lower salary, however.
“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)
A reduction in income may satisfy the second test “the payor is attempting to evade a support obligation” but how could you possibly prove that? Will you subpoena his or her boss to testify that they’re not working as hard as they used to? Obviously, that’s not going to be practical. Maybe a time sheet showing that they’ve reduced their hours. There is no practical way to adequately prove that someone has purposely reduced their income beyond a reduction in hours worked.
People rarely reduce their income forever so you can wait until their income increases again and file a motion to modify child support and/or maintenance once you suspect their income has increased.
Modification Of Support In Illinois
Child support amounts can be changed at anytime after the divorce so long as there is a substantial change in circumstances.
“An order for child support may be modified…upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a)
Likewise, maintenance may be modified post-divorce.
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
“Courts in Illinois have held that “substantial change in circumstances” as required under section 510 of the Act means that…the ability of the other spouse to pay that maintenance has changed” In re Marriage of Anderson, 409 Ill. App. 3d 191(2011)
The most obvious “change in circumstances” is a new job. In the middle of a divorce many people feel compelled to follow their passion and engage in a new, lower paying career.
When the job changer can show “that a good-faith, voluntary change in employment which results in diminished financial ability may constitute a substantial change in circumstances justifying a reduction in child support payments.” In re Marriage of Mitteer, 241 Ill. App. 3d 217, 224, 608 N.E.2d 607
An Illinois divorce court measures whether a party acted in good faith when voluntarily changing employment by considering “whether the change was driven by a desire to evade financial responsibility for supporting the children.” Barnard, 283 Ill. App. 3d at 369. The party seeking to reduce “child support payments bears the burden of demonstrating a proper motive” Barnard, 283 Ill. App. 3d at 369-70.
Salaries don’t always decrease forever, though. An increase in salary would be a substantial change in circumstance that would allow for an upwards modification of child support.
But, the divorce litigant who reduced their salary can defend against any upwards modification of support by saying “we always knew my salary would return to normal. This change is not unexpected and is, therefore, not a qualifying substantial change in circumstances.”
“We note that a party’s increased income does not constitute a substantial change in circumstances when the increase was based on events that were contemplated and expected by the trial court when the judgment of dissolution was entered.” In re Marriage of Salvatore, 2019 IL App (2d) 180425
The answer to this argument is, “We thought your reduced salary was permanent. That’s why support was set so low. If we knew you’d come back to this income we’d already be at the level of support that I’m asking for.”
But, you do not have to make that argument anymore because the statute has changed since the Salvatore decision.
“Contemplation or foreseeability of future events shall not be considered as a factor or used as a defense in determining whether a substantial change in circumstances is shown, unless the future event is expressly specified in the court’s order or the agreement of the parties incorporated into a court order.” 750 ILCS 5/510(a)(1)
A later modification of maintenance is not an option if the divorce litigant with reduced income was initially deemed incapable of paying any maintenance at all. Maintenance cannot, typically, be modified up from zero.
“If the parties waive their rights to maintenance, neither party can in the future obtain maintenance from the other.” 750 ILCS 5/457(e)
Therefore, maintenance must be reserved if a spouse has a temporary reduction in income which makes them ineligible to pay maintenance at the time the divorce is entered.
Reserving Maintenance In An Illinois Divorce
Because maintenance cannot be modified upwards from zero, an Illinois divorce court has the option of reserving maintenance in the hopes that the divorce litigant’s income increases. This reservation is only available when there is a reasonable expectation that the party’s income will increase (as it had in the past).
“Another situation in which a reserved jurisdiction approach has been applied is when the court seeks to monitor the actual circumstances of the parties.” In re Marriage of Scafuri, 203 Ill. App. 3d 385, 396 (Ill. App. Ct. 1990)
“Regardless of whether the court grants or denies maintenance it may consider taking a reserved-jurisdiction approach to maintenance. This would encourage the former spouse to seek employment while providing the court the opportunity to review the award at the end of a fixed period to determine what efforts the spouse has made toward achieving self-sufficiency and whether those efforts have been successful.” In re Marriage of Shafer, 122 Ill. App. 3d 991, 999 (Ill. App. Ct. 1984)
“By reserving the right to review the award after three years to determine whether respondent has made reasonable efforts to find suitable employment, the trial court has chosen a practical alternative designed to avoid the speculation often inherent in future maintenance awards. Rather than speculate regarding the necessity of maintenance three years hence, the trial court added an element of flexibility to its order.” Asch, 100 Ill. App.3d at 298.
Reserved maintenance is usually applied to maintenance seekers to verify that they are trying to get back on their own two feet but reserved maintenance works equally well for would-be maintenance payers who are having a bad year.
“[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 Marriott, 264 Ill. App. 3d 23, 41 (Ill. App. Ct. 1994)
Illinois divorce courts are loathe to reserve issues in a final divorce judgment. It just means the parties will have to return to court eventually.
“We disapproved of the reservation of maintenance under these circumstances, in part because it tended to protract the litigation.” In re Marriage of Marriott, 264 Ill. App. 3d 23, 41 (Ill. App. Ct. 1994)
If a maintenance decision is to be reserved, Illinois divorce courts will try to make the window of reservation as short as possible.
“When utilizing a “reserved-jurisdiction” approach to maintenance, this court has cautioned against reserving jurisdiction for excessively long or short periods of time.” In re Marriage of Wojcik, 362 Ill. App. 3d 144, 170 (Ill. App. Ct. 2005)