People conveniently lose their jobs when they have to pay maintenance pursuant to an Illinois divorce order. While unlucky in their profession, they presume they will be lucky in court when they file a motion to modify their maintenance obligation to reflect their newly unemployed status.
What happens to maintenance in the short term and the long term after a maintenance payor or payee losses their job?
Modifying Maintenance Based On Unemployment
The unemployed have every right to modify their maintenance obligation.
“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)
“[T]he court shall consider the applicable factors set forth in subsection” the court shall consider the applicable factors set forth in subsection:
“[A]ny change in the employment status of either” 750 ILCS 5/510(a-5)(1)
A spouse receiving maintenance may want to modify maintenance upwards to reflect their recent loss of employment. A job loss would automatically entitle the spouse to up to 25% of their previous salary under the guidelines maintenance formula. “The amount of maintenance… shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)
The only question is whether the maintenance payor’s new status as unemployed is voluntary or not. Voluntary unemployment which is motivated by a desire to reduce maintenance cannot be used to reduce a maintenance obligation.
“Employment changes that are voluntary must be made in good faith and not prompted by a desire to avoid maintenance obligations.” In re Marriage of Waldschmidt, 608 NE 2d 1299 – Ill: Appellate Court, 4th Dist. 1993
Voluntary “changes do not constitute a change in circumstances sufficient to result in a modification of
maintenance” In re Marriage of Virdi, 2014 IL App (3d) 130561, ¶¶ 3, 16
A maintenance payor cannot simply quit their job without some rational explanation as to why they quit.
Suspicions about unemployment often lead to the imputation of income for the purposes of support.
“[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)
“[C]ourts have the authority to compel parties to pay child support at a level commensurate with their earning potential…A court may impute additional income to a noncustodial parent who is voluntarily underemployed.” In re Marriage of Adams, 348 Ill. App. 3d 340, 344, 809 N.E.2d 246, 249 (2004).
Should the job loss be legitimate, the maintenance payor can expect to reduce their maintenance obligation…but for how long?
Reserved-Jurisdiction Approach To Maintenance After A Job Loss
Illinois divorce courts can grant a maintenance modification and then wait for the maintenance receiver to file a motion to modify maintenance when the payor is working again (if they even know).
If you are the laid-off maintenance payor, this is the ideal result. The burden is entirely on your spouse to prove you are working and that they need still maintenance after managing without maintenance during your unemployment.
If you are the maintenance receiver, you want maintenance to restart the moment your ex-spouse becomes re-employed.
To further encourage work and restart the payment of maintenance at an appropriate level, courts can reserve on the issue of maintenance until the maintenance payor is working again.
“The reservation of maintenance has statutory authority based on the agreement of the parties or motion of either party and a finding by the court that appropriate circumstances exist.” In re Marriage of Lord, 125 Ill. App. 3d 1, 3 (Ill. App. Ct. 1984) referring to a past statute analogous to the current 750 ILCS 5/504(b-2)(3)
For maintenance payor’s who have recently lost employment, “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)
An Illinois divorce court can “reserve[] the issue of maintenance and order[] [the maintenance payor] to annually provide [the payee] an “updated report relative to his continued [unemployment”” In re Marriage of Wojcik, 362 Ill. App. 3d 144, 168 (Ill. App. Ct. 2005)
Reservation of maintenance can also be used to assess if a party is adequately seeking a job.
An Illinois divorce court “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…. Further, reserving jurisdiction has the advantage under the record in this case, of permitting the trial court another opportunity to assess respondent’s ability to pay maintenance.” In re Marriage of Shafer, 122 Ill. App. 3d 991, 999 (Ill. App. Ct. 1984)
Reservation of maintenance awards make sense when you do not know how much either party will be earning today or tomorrow.
“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.” In re Marriage of Asch, 100 Ill. App. 3d 293, 298 (Ill. App. Ct. 1981)
“[I]t would have been more appropriate for the trial court to reserve for review the maintenance award after a certain time period, giving [one party] an opportunity to seek appropriate employment.” In re Marriage of McNeeley, 117 Ill. App. 3d 320, 329 (Ill. App. Ct. 1983)
Maintenance may be abated for a while longer as the recently unemployed ex-spouse gets back on their feet.
“Although petitioner had recently secured a teaching position, the trial court decided to reserve maintenance to allow her time to begin working and to become self-supporting after her long absence from the teaching profession.” In re Marriage of Smith, 132 Ill. App. 3d 694, 700 (Ill. App. Ct. 1985)
Finally, reserving maintenance is a deviation from the guidelines maintenance amounts. Any deviation from guideline maintenance requires an explanation from the court in the order as to why they did so.
“In each case involving the issue of maintenance, the court shall make specific findings of fact, as follows:
(1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section;
(2) if the court deviates from applicable guidelines under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and
(3) the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/504(b-2)
What Happens When The Maintenance Is Reserved?
During the period the maintenance is reserved, the maintenance can be modified or suspended while the party is out of work. The court will require the unemployed party to check back in on various status dates.
Sooner or later, the unemployed party will be reemployed again. Maintenance will be adjusted to the appropriate level based on the new job including any money owed for the time they were working but not paying that appropriate maintenance amount.
When it comes to maintenance and job loss, you can run…but you can’t hide. Especially if your ex-spouse hires a good lawyer. To speak with an experienced Illinois divorce attorney about this and other divorce matters, contact my Chicago, Illinois family law firm today.
