Posted on November 7, 2020

Stay At Home Parents And Homemakers In An Illinois Divorce

A marriage with a homemaker is often a symbiotic relationship where everyone is happier for it…until they’re not. After a divorce, there can be no further cooperation. The homemaker either has to get a job, request alimony, child support and/or a greater share of marital assets.

During an Illinois divorce, stay at home parents, homemakers and their spouses face special considerations as their lawyers and the divorce courts try to rebalance their now separate lives.

“Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. Petitioner should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle petitioner with the burden of her reduced earning potential and to allow respondent to continue in the advantageous position he reached through their joint efforts.” In re Marriage of Hart, 551 NE 2d 737 – Ill: Appellate Court, 4th Dist. 1990 (on dissent)

Homemakers and Maintenance (Formerly Known As Alimony) In An Illinois Divorce

In almost every case involving a homemaker or stay at home parent, there will be a maintenance award from the working spouse to the non-working spouse.

The first step in the analysis of awarding maintenance in an Illinois divorce is determining if maintenance SHOULD be awarded. In order for the court to allow maintenance, the court must consider a series of factors, many of which strongly imply that a homemaker should be awarded maintenance. Those factors include:

• 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

Virtually every one of these factors tells the court that a homemaker needs maintenance from their spouse post-divorce.

Homemakers get maintenance. “Marriage is a partnership, not only morally but financially. Spouses are coequals and homemaker services must be recognized as significant when the economic incidents of divorce are determined. The former homemaker should not be penalized for having performed his or her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle the former homemaker with the burden of his or her reduced earning potential and to allow the wage-earning former spouse to continue in the advantageous position he or she reached through their joint efforts. Thus, the dependent former spouse is entitled to continue to live in some approximation to the standard of living established during the marriage unless the payor spouse’s financial situation, the duration of the marriage, or other factors indicate otherwise.” In re Marriage of Lenkner, 241 Ill. App. 3d 15, 25 (Ill. App. Ct. 1993)

Once a maintenance award is given the green light, it is just a question of how much maintenance and for how long. Both of these numbers are determined “by the guidelines”

In a guidelines 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)

Homemakers will argue that 25% of nothing…is nothing. Therefore, a homemaker should be entitled to 33% of their spouse’s net income as maintenance.

The working spouse is going to request that the court impute income to the non-working spouse.

“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)).” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009)

It is a stretch for the working spouse to allege that the homemaker is voluntarily unemployed. There clearly was an agreement that the homemaker would remain out of the workforce (or maybe there wasn’t?)

A homemaker is probably not purposely evading their obligation and not taking employment opportunities when you are maintaining a household is not unreasonable.

Still yet, courts want people to move on with their lives after a divorce. Courts will strongly encourage homemakers and stay at home parents to get jobs in furtherance of the theory that having a career is part of what you makes a whole person in 21st century America (the wisdom of that is debatable). The only tool a court really has to force someone to work is to impute income.

Imputation of income under this theory is reasonable for someone who was a homemaker for 5 years and has their whole life ahead of them. A homemaker who has been out of the work force for 20 years cannot be expected to have any income imputed to them (in my opinion).

But, a homemaker may have an education or a career in their past. “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

If the combined income of the parties is above $ 500,000 a year, the guidelines will not apply. Illinois divorce courts will simply determine a number which is fair to both parties based on a totality of the circumstances. “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)

After the amount of maintenance is determined, the length of the maintenance award is determined by the length of the marriage.

In an Illinois divorce, maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(B)

Many homemakers eventually start working in some capacity or the homemaker modifies their lifestyle as children age, etc. Either instance can be cause for a modification of maintenance…and maintenance always gets modified downwards.

“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 either the needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed” In re Marriage of Anderson, 409 Ill. App. 3d 191(2011)

Homemakers usually like keeping a home for someone. This means they often remarry or cohabitate which, will automatically terminate their maintenance award.

Finally, it is often the case that homemakers are less financially sophisticated than their working spouses. This means homemakers need to be concerned about tax implications of their maintenance awards. Well, good news for homemakers after a divorce: they do not pay taxes on anything the federal government can deem as alimony.

Homemakers and Division Of Assets In an Illinois Divorce

Money is fungible. The person spending or receiving the money does not care whether it came from a maintenance or a settlement award. Money is money. Therefore, homemakers need to ask for money in their divorce from whatever source they can find it from.

Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including… (ii) the contribution of a spouse as a homemaker or to the family unit” 750 ILCS 5/503(d)(1)

Illinois divorce courts will consider the work of a homemaker as work that increased or maintained the value of any marital assets.

“In a long-term marriage, the source of the assets in acquiring marital property becomes less of a factor, and a spouse’s role as the homemaker becomes greater.” In re Marriage of Scoville, 233 Ill. App. 3d 746, 758 (1992)

Homemakers often stay homemakers due to their ongoing responsibility for their children. This often causes an Illinois divorce court to award the stay at home parent the marital home. Illinois divorce courts will weigh “the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;” 750 ILCS 5/503(d)(5)

Illinois divorce courts will also consider a homemakers inability to earn future income and possibly award that homemaker a greater share of the marital assets to compensate for that inability to earn more.

Illinois divorce courts shall consider “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties” and “the reasonable opportunity of each spouse for future acquisition of capital assets and income” 750 ILCS 5/503(d)(8) and 750 ILCS 5/503(d)(11)

This usually amounts to the homemaker receiving a disproportionate share of the marital assets. In Illinois, there is no presumption of a 50/50 equal split of the marital assets. “The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

Additionally, if a stay at home parent receives custody of the children (or at least has the children during the week, they can expect to be awarded the marital home. The marital home may be awarded after the court has considered, “the custodial provisions for any children” 750 ILCS 5/503(d)(9)

What If The Homemaker Did Not Have Children In An Illinois Divorce?

If the spouse that stayed home did not have children, it feels like they should not be allotted the same consideration as a stay at home parent.

The Illinois Marriage and Dissolution of Marriage Act makes no distinction between the childless homemaker and the stay at home parent. The Illinois Dissolution of Marriage Act looks to “the contribution of a spouse as a homemaker or to the family unit” 750 ILCS 5/503(d)(1)

“[The Act] expressly directs the court to consider contributions of a spouse as a homemaker or to the family.” In re Marriage of Aschwanden, 82 Ill. 2d 31, 37 (Ill. 1980)(emphasis mine)

“[S]ection 503 [of the Illinois Marriage and Dissolution of Marriage Act] was intended to recognize and compensate the homemaker as an equal partner to the marriage — a partner whose domestic contributions have assisted in giving economic value to the tangible assets of the marriage…the intent of section 503 as a whole was designed to eliminate disparity between the marriage partners” In re Marriage of Smith, 86 Ill. 2d 518, 529 (Ill. 1981)

Stay At Home Parents And Child Custody In An Illinois Divorce

If there are children in an Illinois divorce an Allocation of Parenting Time and Parental Responsibilities must be proposed and entered with the court. This documents divides both the decision-making regarding the children and the time each parent will spend with the children.

The parties usually try to come to an agreement on both the decision-making and the parenting time. Stay-at-home parents are often wary of allowing the working parent to become an equal co-parent in all matters.

If the parties cannot agree, the court will assign the parental decision-making responsibilities, education, extra-curricular activities, health and religion, to each parent.

“The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child.” 750 ILCS 5/602.5(b)

Illinois courts decide who gets decision-making authority over the children by confirming that allocation of decision-making authority is in the best interests of the child.

“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors” 750 ILCS 5/602.5(c)

Stay at home parents have an advantage in regards to many of the factors the courts will consider when determining the best interests of the children.

Testimony can be entered into evidence regarding “the level of each parent’s participation in past significant decision-making with respect to the child” 750 ILCS 5/602.5(c)(5)

In an Illinois divorce court hearing, the past determines the future. Merely reminding the judge that one parent has already been making the decisions for the children practically entitles them to continue to do so. The only question is, do they have to share that decision-making post-divorce?

If the parents have been sharing decision-making, then the parents probably will be ordered to continue to share decision-making post-divorce.

Illinois courts will weigh “any prior agreement or course of conduct between the parents relating to decision-making with respect to the child” 750 ILCS 5/602.5(c)(6)

Sometimes, a divorce becomes so acrimonious that the parties are not able to even speak to each other about mutual parenting issues. This lack of communication can be cause for one parent to be awarded exclusive decision-making power in regards to the children or a parallel parenting arrangement will be ordered by the courts.

Illinois courts will consider, “the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making” 750 ILCS 5/602.5(c)(4)

However, even the most involved stay at home parent will not be able to micromanage their child’s activities when the other parent is with the child. 99% of decisions regarding children are mundane and happen moment-to-moment as each parent is with the child.

“A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time” 750 ILCS 5/602.5(d)

Decision-making, while important for the big concepts like school and health, is often not as important as determining the parenting time each parent shall exercise with their children.

“The court shall allocate parenting time according to the child’s best interests” 750 ILCS 5/602.7(a)

Again, the stay at home parent has a large advantage in arguing for more parenting time based on the Illinois statute’s considered factors such as:

“[T]he amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth” 750 ILCS 5/602.7(b)(4)

“[A]ny prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child” 750 ILCS 5/602.7(b)(5)

The stay at home parent can, in particular, lean on the factor which requires the court to acknowledge which parent prioritizes the child and their well-being.

“[T]he willingness and ability of each parent to place the needs of the child ahead of his or her own needs” 750 ILCS 5/602.7(b)(12)

The working parent’s counter-argument to these factors is that an Illinois divorce court cannot hold a parent’s job against them so long as that job does not affect the actual parenting.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

In theory, this means that the working parent should be awarded time with their children at any time the working parent is not working.

In reality, stay at home parents rarely continue to not work after a divorce. It’s financially infeasible for all but the most wealthy parents. Children are simply too expensive.

When both parents are working, the children’s schedule is usually divided based on which parent is not working.

Stay At Home Parents and Child Support In Illinois

In Illinois, child support is determined by applying both parents’ incomes to a schedule of what child support should be for a children with parents with those incomes (Apparently, it costs more to raise a rich child than a poor child).

A stay-at-home parent, if they are still not working, may have their income imputed to them as described above in regards to imputed income and maintenance.

The parent with the most parenting time then receives child support, based on the joint-income chart, from the parent with the least amount of parenting time.

If the parent with the least parenting time has more than 146 days a year of parenting time (that’s 40% of the year), that parent gets a significant child support adjustment.

“If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation.” 750 ILCS 5/505(a)(3.8)

“The child support obligation is then computed for each parent by multiplying that parent’s portion of the shared care support obligation by the percentage of time the child spends with the other parent.” 750 ILCS 5/505(a)(3.8)

“The respective child support obligations are then offset, with the parent owing more child support paying the difference between the child support amounts.” 750 ILCS 5/505(a)(3.8)

This process is ridiculously complicated. So, let me provide an example (feel free to skip):

Roger and Lisa have one child together.

Roger earns $ 75,000 net a year and Lisa earns $ 30,000 net a year. Their joint net income is $ 105,000 or $ 8.750 a month.

The chart tells us that the child support obligation shall be $ 1331 a month. If Roger has less than 146 nights with the child, Roger will be paying Lisa $ 1331 a month in child support.

If Roger has more than 146 nights a year with the child, the following calculations must be made.

Then we multiply that amount by 1.5. $ 1331* 1.5 = 1,996.5

Roger earns 71.4% of the total net income of both parents ($75,000 / $105,000). So, Roger’s initial obligation (before recalculating based on parenting time) will be to pay Lisa $1425.50 ($1996.50 * .714) for monthly child support.

If Roger has parenting time with the child 146 nights a year. He has the child

40% of the time. It follows that Roger does NOT have the child 60% of the time. So, multiply the child support obligation by the percentage of time that the parent with the majority of the time has with the child.

$1425 * .60 = $ 855

Lisa’s obligation is the total child support obligation multiplied by her share of the total income ($1996.50 X .286 = 570.85). That amount is then multiplied by the percentage of time Lisa does NOT have parenting time with the child, 40%. $570.85 * .40 = $228.34

Roger’s obligation ($ 855) less Lisa’s obligation ($228.34) is $656.66

No one actually does these calculations! We all just use an online calculator. The important thing to know is that if a parent is awarded parenting time over 146 days a year (that is just slightly less than 3 days a week), that parent’s child support will be drastically reduced.

A stay at home parent will be likely to ask the court to forgo these calculations as the calculation relies excessively on the incomes of two parents and there is only one income for the child of a stay at home parent.

The court can waive the guidelines calculations if the court finds that doing so would be in the best interests of the children.

“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…”750 ILCS 5/505(a)(2)

Once guidelines are waived, the court will make a child support waived purely based on “the financial resources and needs of the child” 750 ILCS 5/505(a)(2)

These resources and needs are largely going to be determined by the parties’ financial affidavits and possible testimony to clarify and buttress allegations about how much it costs to the raise the child.

Again, stay at home parents usually cannot stay at home forever. If the stay at home parent eventually starts working, the child support will be modified to reflect that new income. As the children age out, child support will also be subsequently modified.

If you are a homemaker or your spouse is a stay at home parent, your divorce is going to be a lot more complicated than a divorce between two working people. Contact my Chicago, Illinois family law firm to learn more about your options after speaking with an experienced Chicago divorce attorney.

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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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