No one likes to pay spousal maintenance (formally called “alimony” or referred to as spousal support). When you are employed and your ex refuses to work, there is a greater reluctance to want to pay maintenance. In Chicago divorces, there is a difference in how judges will treat the situation of a non-working spouse though depending on if your case is “pre-decree” (before the divorce) or “post-decree” (after the divorce). If your case is pre-decree, in the initial hearing for spousal maintenance, the judge will take your spouse as they are right then — working or not working. Spousal maintenance will be set based on the income both parties are making right then. First, though, you should understand what the word “maintenance” (or alimony) is to better understand how to argue your case.
When Is Maintenance Given to Your Spouse?
When one spouse files for divorce and the other spouse lives in a separate household, there is an assessment as to each party’s ability to support themselves. Spousal maintenance is supposed to support your spouse in the same manner in which he or she had previously lived when you were together if that is possible. The statute under Illinois law is found at 750 ILCS 5/504. Under this statute, the court may grant a maintenance award to either spouse and for periods of time as the court deems just and appropriate. There is no discussion of “fault” or reasons why you’re getting a divorce, so even if your spouse has done something wrong in your eyes, like had an affair, a Chicago court will not consider it as a reason to keep your spouse from getting maintenance.
First, The Court Must Find That Your Spouse Needs Maintenance
When it comes to getting maintenance in an Illinois divorce, it is only to be paid to a spouse that needs it. There are 14 different factors that the court looks at to determine if maintenance should be paid and once that determination is made, the court uses what we call “guidelines” to calculate the amount your spouse is to receive.
But What If My Spouse Refuses to Work?
In a pre-decree situation, the judge takes your spouse as the judge finds them. Meaning, if your ex is not working right now, the judge can still award him or her maintenance even though your ex can work or, in the past, had a decent-paying job. Oftentimes, in a pre-decree case, the judge could require your spouse to find employment and prepare a weekly job diary demonstrating the steps he or she has taken to gain employment. If your spouse never becomes employed and the judge finds that there is a lack of effort on your ex’s, the court can impute income to your spouse.
What Is Imputed Income?
An easy way to understand imputed income is by way of example. If your wife was a dentist making $85,000 a year and then decided she would rather open up her own business to sell handmade soap, she technically has a job (which is selling soap). But if the new business only allows her to make $10,000 a year instead of the $85,000 a year, you of course will not want to use the lesser income for her contribution in a maintenance calculation. After all, if you are both capable of making the same among of income, it would be unlikely that you would pay support at all. In this example, absent other reasons, the court would typically require your wife to go back to seeking work as a dentist. She might still elect to sell soap, but perhaps as her side job and not as her regular employment. If your wife refuses to obtain another job as a dentist and insists on making soap only, your attorney is likely to argue that the $85,000 should be imputed to your wife, as if she made that amount of money.
After the Divorce What if My Ex-spouse Still Refuses to Work?
To answer that question, you need to know what kind of maintenance was given your spouse in the divorce decree. Not all maintenance is the same and the type of maintenance awarded typically has some requirements imposed on the ability to keep the maintenance or have it terminated. Since the court enters more agreed-to orders, or Marital Settlement Agreements, than it conducts trials, the written Marital Settlement Agreement detailing the terms of maintenance is very important.
If the maintenance is permanent, there may be no requirement ever for your spouse to seek employment after the divorce. Depending on your spouse’s age or disability, maintenance may be given until there is a “substantial change in circumstance.”
What Is a “Substantial Change in Circumstance”?
There is no way to cover this subject in its entirety in this writing. The law in this area seems to change every day, but a change in circumstance is just that. Something substantial has changed in the circumstances, and the payor then requests a modification. Maybe the payor has retired, or gotten sick and stopped working, or the payee is making more money than when the divorce was granted. Even in those circumstances, however, the court does not always allow for the termination of maintenance, so the wording in your marital settlement agreement becomes very important.
The statute allows for the termination of maintenance if your spouse remarries or starts living with another person in a conjugal relationship. That would be a substantial change, but also if your spouse gains employment. Your ex-spouse’s financial position has improved and it might be time to adjust the amount.
If the spousal maintenance is considered “rehabilitative”, then there should be language in your Marital Settlement Agreement leading to eventual employment. When there is rehabilitative maintenance, the spouse may need to go back to school or update their skill set before they are ready for employment. Your settlement agreement should clearly state what is expected from both spouses to avoid litigation about it later.
Review Your Marital Settlement Agreement or Judgment
Take out your divorce decree and read it to see what type of alimony (maintenance) the judge awarded, or what terms were agreed upon. If your marital settlement agreement is not yet drafted, make sure to ask questions about how and when the maintenance you are paying will end. If the agreement requires a review on maintenance, make sure the review language is clear so each side knows what is expected of them. If your ex is not employed and the agreement indicated that she or he had 5 years to gain employment, then it may be time to seek advice from a divorce attorney and revisit the issue of maintenance by taking the case back to court.