When a divorce happens in Illinois, the income of both parties is used to determine the support one party will pay the other. Additionally, the income the parties should be able to earn will be considered in making the determination of maintenance and/or child support. How do you do determine what a divorcing spouse should be earning, however? Can an expert be used to determine what a divorcing spouse’s income would be in the current job market?
Maintenance and Chlld Support In An Illinois Divorce
Maintenance and Child Support in Illinois are determined by the parties incomes.
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)
Similarly, “The Illinois Department of Healthcare and Family Services shall adopt rules establishing child support guidelines…that reflects the percentage of combined net income that parents living in the same household in this State ordinarily spend on their child.” 750 ILCS 5/505(a)(1)
Calculating support based on the parties incomes is fair…unless one party is not working to their full potential.
Imputing Income In An Illinois Divorce
Underemployment by one spouse can allow the other spouse to request that the allegedly undemployed spouse’s income be imputed as if they were working to their full potential.
“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)
While this Illinois statute refers to child support, income for the purposes of maintenance (formerly known as alimony) in Illinois is calculated using the methods as child support.
“As used in th[e maintenance] Section, “net income” has the meaning provided in [the child support] Section…of this Act” 750 ILCS 5/504(b-3.5)
Once an allegation of underemployment has been made, the party alleging underemployment must then prove that underemployment and the true potential income of the underemployed spouse.
“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
Vocational Evaluations In An Illinois Divorce
With the exception of the underemployed spouse getting an actual job commensurate with their skill and experience, how can that spouse’s true potential income be determined.
A party’s unrealized potential income is a subject of opinion and therefore can only be presented by an expert.
“[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion” Ill. R. Evid. 702
The type of expert who assesses someone’s earning potential is called a “vocational expert.” A vocational expert is someone with special experience with regards to the labor market, a human resources specialist or economist. Typically vocational experts provide testimony for cases which determine social security disability insurance.
“[C]redible testimony of…vocational experts can indicate[] that [a party] could immediately find employment” In re Marriage of SD, 980 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 2nd Div. 2012
In many other states such as Florida (where I am also licensed), the law allows a party to be examined by a vocational expert for the purposes of determining a divorcing party’s true potential income.
In these states, the vocational expert asks the party directly about their experience and education in order to form their expert opinion.
Illinois does NOT have a law that allows for examination of a party by a vocational expert.
The law that does allow for examination of a party to a divorce only applies if the party’s “physical or mental condition…is in controversy”
“In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Ill. Sup. Ct. R. 215
Depending on your position, a party’s inability or refusal to work can be argued to be or NOT be a “mental condition.” In my opinion, a person’s experience and capacity to work is not a mental condition.
Furthermore, Illinois Supreme Court Rule 215 examinations are to gather discovery (evidence) NOT for the purpose of arriving an expert opinion…which is exactly what a vocation expert is trying to do.
“The purpose of the rule permitting the court to order a party to submit to physical or mental examination by a [licensed expert] suggested by the party requesting examination is not to provide an expert witness for the litigant but to permit discovery.” Carlisle v. Harp, 558 NE 2d 318 – Ill: Appellate Court, 5th Dist. 1990
How To Use A Vocational Expert In An Illinois Divorce Without Submitting A Party To A Vocational Evaluation
Experts in a divorce trial do not need to individually examine and interrogate a divorce party in order to discovery the bases of their potential income.
Expert witnesses can use ANY kind of evidence “reasonably relied upon by experts in [their] particular field.”
“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Ill. R. Evid. 703
Most of the information necessary for a vocational expert to form an opinion about a divorcing party’s potential income can be obtained via a Notice To Produce.
“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents” Ill. Sup. Ct. R. 214(a)
This request could include resumes, diplomas, college transcripts. Anything that might help a vocational expert arrive at a conclusion.
Of course, the underemployed spouse may not have any of the documents that would help the vocational expert. In such a case, the inquiring spouse may subpoena former educational institutions and employers for this information.
Additionally, the vocational expert can simply provide the inquiring spouse’s attorney with the questions the vocational expert would have asked during a vocational evaluation. The inquiring attorney can then ask those questions to the underemployed spouse during a deposition and then provide the vocational expert with a copy of the transcript with the underemployed spouse’s answers to those questions.
And expert does not have to worry about the admissibility of any information they use in arriving at their expert conclusion so long the expert uses the traditional information in forming that expert conclusion.
“[A]n expert can give his opinion based upon facts that are not in evidence if those facts are of a type reasonably relied upon by experts in the particular field.” People v. Pasch, 604 NE 2d 294 – Ill: Supreme Court 1992
A spouse who won’t work likely won’t cooperate with your attempt to show that they are unemployed. Carefully asking for information that a vocational expert can use is both a skill and an art. Contact my Chicago, Illinois family law firm to learn more about what to ask…and how.
