by:

Joshua E. Stern

Monetary issues represent one of the principal reasons why couples divorce, especially when one spouse works and the other does not. Typically, stress builds over the course of months or years until finally the frustrated spouse reaches his or her breaking point and initiates divorce proceedings.

At that time, the working spouse is often surprised to learn that he or she will be responsible for paying maintenance (also known as spousal support and formerly referred to as alimony) to the non-working spouse, which increases tensions further. And the individual who was trying to at first escape the imbalance often finds themselves trapped in the very situation they sought to leave, at least until the maintenance obligation ends.

Why Can Unemployed Spouses Receive Spousal Support?

The short answer is that family law courts are courts of equity and it’s hardly equitable for one spouse to leave a marriage destitute and unable to support him or herself.

How courts treat spousal support in cases where the parties contributed different amounts to the marriage depends a lot on the arrangement between the parties. The court will consider whether unemployment was voluntary or involuntary, whether the unemployed spouse handled most of the childcare responsibilities, or if the spouse was disabled and, as a result, could not be gainfully employed.

Technically, Illinois courts consider a wide array of factors to determine whether spousal support is appropriate. Illinois maintenance awards are governed by statute (750 ILCS 5/504 to be specific). Before determining how much a spouse may receive in maintenance, the court will first decide whether spousal support is appropriate. I’d suggest reading our Maintenance Checklist for more information (and, as always, the statute). We also have a maintenance calculator which can assist in estimating a statutory maintenance obligation.

Cutting to the chase, the two biggest questions to ask when one spouse is unemployed are: can he/she work and, if so, what can he/she earn? The unemployment is moot is the working spouse can only earn minimum wage and the higher earning spouse earns substantially more. Income differentials will jump out at a court and support a request for spousal support.

How Much Spousal Support Will Be Awarded?

Assuming that, based on the statutory factors, maintenance is awarded, the next question is how much? Again, courts have broad discretion here. Illinois currently provides a formula to determine how much spousal support should be paid where a family’s combined gross income is below $500,000.

Below the $500,000 cutoff, spousal support is typically awarded pursuant to the following formula: 33.3% of payor’s net income – 25% of recipient’s net income (but where the recipient cannot receive more than 40% of the combined net income). The 40% cap is to prevent windfalls to the receiving spouse.

If the formula makes your eyes glaze over, you can use our maintenance calculator and run the numbers yourself.

Courts retain the ability to deviate from the formula for good cause. What’s good cause? It’s very case specific and will undoubtedly be a product of the judge’s feelings about the needs of the parties.

Above the $500,000 threshold, spousal support is more subjective and will be based on the statutory factors and any relevant caselaw. That is to say: you should probably get a lawyer.

How Long Will Spousal Support Be Paid?

Spousal support is typically awarded pursuant to the statutory term.For marriages under 5 years, the duration of the support obligation is equal to 20% of the length of marriage. From there, the duration of support increases by 4% for each subsequent year of marriage. Accordingly, the duration of support looks like this:

0-5 years = support is paid for 20% of the length of marriage
5-6 years = support is paid for 24% of the length of marriage
6-7 years = support is paid for 28% of the length of marriage
7-8 years = support is paid for 32% of the length of marriage
8-9 years = support is paid for 36% of the length of marriage
9-10 years = support is paid for 40% of the length of marriage
10-11 years = support is paid for 44% of the length of marriage
11-12 years = support is paid for 48% of the length of marriage
12-13 years = support is paid for 52% of the length of marriage
13-14 years = support is paid for 56% of the length of marriage
14-15 years = support is paid for 60% of the length of marriage
15-16 years = support is paid for 64% of the length of marriage
16-17 years = support is paid for 68% of the length of marriage
17-18 years = support is paid for 72% of the length of marriage
18-19 years = support is paid for 76% of the length of marriage
19-20 years = support is paid for 80% of the length of marriage
20 years or more = support is paid for a period equal to the length of marriage or permanently

Like in all other areas, courts have discretion to deviate from the statutory maintenance term. If a spouse is unemployed due to disability or illness, a court may very well consider that and order a longer maintenance term. Likewise, in some cases, maintenance may be reviewed and extended on a period basis.

What If My Spouse Is Voluntarily Unemployed?

There are a few tools at the payor’s disposal. First, he or she can request that the unemployed spouse look for work and maintain a job diary. The unemployed spouse would have a requirement to apply for X number of jobs per week and provide a written report to the court once a month (or as set by the judge).

Second, a court may impute income to the unemployed spouse. Imputed income is income assigned to a spouse for purposes of calculating spousal support, even though it is not actually earned by the unemployed spouse. It gives the paying spouse the economic benefit of having both parties employed while permitting the unemployed spouse to remain unemployed. Imputation of income is less common where the unemployed spouse cannot work due to disability, illness, or family commitments.

How Is Property Division Affected By Unemployment?

This brings us back to a point made earlier: Illinois is an equitable division state and family law courts are courts of equity. The result has to be fair and an unemployed spouse obviously has greater financial needs than an employed spouse. Those needs may be met by spousal support, disproportionate property awards, or some combination of the two.

In equitable distribution states, property acquired during the marriage is typically owned by both parties in equitable proportions (and is referred to as being possessed by the “marital estate”). Upon divorce, each spouse is entitled to an equitable distribution, which is not necessarily 50 percent (but often is). Courts will dictate what a fair share is, and base its determination on factors similar to those in its maintenance consideration, among others. Therefore, if a spouse is unemployed due to a disability that prevents him or her from working, a court may allocate more than 50 percent of an asset to that spouse. Alternatively, if a husband or wife is deliberately unemployed, he or she may receive less than 50 percent of the asset’s value.

What Should I Do?

You should hire an attorney (but I might be biased). If you are married to someone who deliberately refuses to work, but was previously employed, it is best to divorce quickly, allowing the court to consider previous earning in its determination regarding maintenance and property division. It’s also best to address the issue early in a case, providing more time for a job diary to be successful or to lay the groundwork for an imputation argument. Of course, that is not legal advice and each case is different.

In some situations, it may make sense for the paying spouse to offer a lump sum buyout to the unemployed spouse instead of paying the support award in installments over an extended period. Because a dollar today is worth more than a dollar tomorrow, a lump sum buyout allows the unemployed spouse to receive a greater benefit than he or she otherwise would, while costing the working spouse more. However, can you ever really put a price on your freedom?