Posted on July 5, 2020

Second Jobs, Overtime And Divorce In Illinois

Divorce is financially stressful.  Two incomes used to support one household before the divorce.  After the divorce, one income often supports two households. On top of those household expenses are the divorce attorneys’ fees.  Often the only way to pay these expenses is to get a second job or overtime hours. But, how does a second job or overtime affect an Illinois divorce?

Second Jobs and Overtime During an Illinois Divorce

If you have children and are getting a divorce, child support will be ordered at some stage during the divorce process. “[T]he court may order either or both parents owing a duty of support to a child of the marriage…to pay an amount reasonable and necessary for support.”750 ILCS 5/505(a)

The biggest factor in determining child support in Illinois is the gross income of both parents.

‘[G]ross income’ means income from allsources” 750 ILCS 505(a)(2)(A) 

Gross income. For purposes of this Section [the maintenance section of the statute], the term “gross income” means all income from all sources, within the scope of that phrase in Section 505 [the child support section of the statute]. 750 ILCS 504(b-3)

The courts are not likely to care that the income from a second job or overtime is beyond your previous regular income. The courts are to look at your “gross” or total income.

The best argument against using second job or overtime pay in calculating income is to calculate income on an annual basis using the year-to-date numbers on your paystubs.  This helps explain and ameliorate any recent increase in income for child support purposes. 

All of the these income rules also apply for unmarried parents in regards to child support.

During an Illinois divorce, all income that is earned and saved is marital property. 

Marital property is “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

“Subsequent to the marriage” means the time period after the wedding date and before the actual Judgment For Dissolution Of Marriage.

Illinois divorce courts “shall divide the marital property” 750 ILCS 5/503(d)

So, additional income earned during an Illinois divorce, if saved, will be divided between the divorcing couple.

But, no one is busy saving money during a divorce.  Usually, they’re getting into debt during a divorce via credit cards.  Debts incurred during the divorce process are divisible just as savings are divisible. 

Usually, courts presume that all debts incurred after the marriage are for a “purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.  Therefore, those debts are not divisible.

Perhaps going into debt during a divorce is a better idea than getting a second job or picking up overtime hours during a divorce.

Updates such as new income or new debts must be disclosed during the divorce process as part of the seasonable update of discovery.

Second Jobs And Overtime After An Illinois Divorce

After the Judgment For Dissolution Of Marriage is entered, marital property is divided, child support and maintenance are established. 

The parties’ incomes will presumably change as time passes after the divorce.

Most Marital Settlement Agreements include a clause that reads “On the 15th of February, each party shall exchange W2s and 1099s with the other party for the purposes of verifying income.”

Despite such a clause, almost no divorced person exchanges W2s and 1099s with their ex-spouse without being reminded.

Usually, second jobs and overtime will be revealed by a divorced parent’s parenting schedule changes and/or requests for changes.

Upon discovering that there has been a change of income in either parent, you can request to modify child support.

A small change in income will not be sufficient. In order to modify either child support and/or maintenance the petitioner must show “a substantial change in circumstances” 750 ILCS 5/510(a)(1) and 750 ILCS 5/510(a-5)

Strangely, child support and maintenance have two different standards in Illinois for “substantial change in circumstances” for the purposes of modification.

Child support modification does not outline what a “substantial change in circumstances” are except to say it is not necessary to even establish a “substantial change in circumstances” if “a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines” 750 ILCS 5/510(a)(2)(A)

Modifying maintenance based on a second job or overtime is easy to establish. “In proceedings in which maintenance is being reviewed, the court shall consider… any change in the employment status of either party and whether the change has been made in good faith” 750 ILCS 5/510(a-5)

Second jobs and overtime (or the loss thereof) are automatic reasons to modify maintenance.

Second jobs and overtime (or the loss thereof) which result in a 20% change in income are automatic reasons to modify child support in Illinois.

But, these changes in income have to be permanent and not of a mere temporary nature in order to modify child support or maintenance.  Gaines v. Gaines, 245 NE 2d 574 – Ill: Appellate Court, 1st Dist., 4th Div. 1969

If a person switches careers or jobs so that they earn less money, they can change their support so long as that change was in good faith (not for the purposes of reducing support). “[A] good faith career change, resulting in a decreased income, may constitute a material change in circumstances that warrants a reduction in a spouse’s support obligations” Wolcott v. Wolcott, 735 P. 2d 326 – NM: Court of Appeals 1987

What is a good faith career change?  Any career change where there is no evidence of an intent to reduce support. In re Marriage of Ebert, 400 NE 2d 995 – Ill: Appellate Court, 5th Dist. 1980

Second Jobs, Overtime and Parenting Time

If a parent is working overtime or working a second job and that overtime or second job cuts into the working parents allocated parenting time, then the Allocation Of Parenting Time And Parenting Responsibilities needs to be modified. 

If the overtime or second job is not so consistent or long-term to warrant a modification of the current parenting plan, then the other parent  an exercise their right of first refusal during the hours that the working parent is at work.

Can An Illinois Divorce Court Force Me To Get A Second Job Or Work Overtime?

There is not a black and white rule about whether an Illinois court can order a second job or overtime work but the implication is that it cannot.

“If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” 750 ILCS 5/505(a)(3.2)

It is tough to argue that not working overtime or a second job is in any way or form “underemployment.” Working a second job or overtime is literally overemployment.

The counter-argument is that “[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” 750 ILCS 5/505(a)(3.2)

So, it could be argued that if someone always worked overtime and overtime is available, they should probably be working overtime now.  I don’t see this as a strong argument.   

If you’re working a second job and/or overtime AND you’re getting a divorce, you’re probably under a lot of stress. Contact my Chicago divorce law firm to discuss your options with an experienced Chicago divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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