Three Things to Consider When Divorcing an Unemployed Spouse in Illinois

 Posted on November 05, 2024 in Divorce

Divorce is never easy, but it is made even more difficult when one spouse cannot or will not work. Studies show that divorce is substantially more likely among heterosexual couples when the husband is not employed. The working spouse may feel frustrated by months or years of supporting the household but may also feel guilty for potentially cutting off the non-working spouse’s source of income.

One spouse may wonder, "What is a non-working spouse entitled to in a divorce?" The answer to that question may be different, depending on the specific facts and circumstances of the couple.  Divorcing an unemployed spouse does not have to be a nightmare. In addition to hiring an experienced Wheaton, IL divorce attorney, here are three things to consider when divorcing an unemployed spouse. 

Alimony or Spousal Support

Alimony, or spousal support, is given to the lesser-earning former spouse to ensure they are able to maintain the kind of lifestyle they enjoyed during the marriage. The factors the court considers during the alimony ruling will include why the non-working spouse did not work. Spouses may also reach an agreement about alimony, called spousal maintenance in Illinois law, through mediation, collaborative law, or lawyer-assisted negotiations. If a wife and husband agree that the husband will work outside the home and the wife will raise their children, the wife is likely to be awarded more spousal support than in a divorce in which the wife chooses not to work. 

Child Support

During a divorce, the spouse who makes less money will often get awarded child support. Whether a spouse will receive child support is determined by a number of factors, the most relevant of which is the amount of parenting time allotted to the spouse. Child support is determined by a statutory formula in Illinois. The amount of child support a spouse receives depends on the difference between the parents’ net incomes. A parent who chooses not to work without a good reason can place an undue child support burden on the other parent.

Marital Property

Illinois is an "equitable division" state – this means instead of the 50/50 split in community property states, all marital assets will be divided fairly, although not necessarily equally. Illinois law treats marriage as a joint enterprise. If spouses agree that one will work and the other will raise children and be a housekeeper, Illinois law can see the contributions of a housekeeper as substantially similar to financial earnings. This means that the marital property may be split as if the housekeeping and child-rearing parent were working and earning money. 

How Many Stay-At-Home Mothers Get Divorced?

Almost a quarter of all mothers are now stay-at-home moms – a sharp rise from the 15 percent in 2022. This means that almost nine percent of women gave up their jobs to stay home with their children. One reason for this could be the staggering cost of childcare, which can take such a substantial portion of a woman’s salary that it hardly makes sense to work. But are stay-at-home moms more likely to divorce than working mothers? There seems to be a wide disagreement on the answer to this question and no clear answers.

One theory is that women who stay home to raise their children are unfulfilled career-wise and end up unhappy in their marriages as well. There are no hard statistics to back this theory up. Another theory is that with only one working spouse, the couple is bound to have financial difficulties, which are among the top five reasons for divorce.

While we simply do not know whether stay-at-home moms are more likely to divorce, we do know that they often fare worse financially after a divorce, particularly if the mother has been out of the workforce for a significant time. Employers often ignore resumes from moms with a large gap in their work history despite their education and skills matching the job requirements.

What Happens if a Spouse is Remaining Unemployed on Purpose?

Generally speaking, a prenuptial or postnuptial agreement can adequately address a spouse who refuses to work by stating that he or she is not entitled to spousal support in the event of a divorce. The flip side of this is that a spouse who is not working and cannot work can ask the court to render a prenuptial agreement unenforceable. Under Illinois law, if an agreement to eliminate spousal support causes one spouse undue hardship in light of circumstances that were not foreseeable, the court may overturn the agreement.  

If the court believes a spouse is deliberately unemployed, whether to secure more spousal support or a larger share of the marital assets or to avoid paying child support, the court will impute income for the unemployed spouse. If the spouse has the education, training, skills, and experience to obtain a job that pays $75,000 a year – but chooses not to – the court will impute this income on behalf of the unemployed or underemployed spouse.

In some cases, a parent who does not want to pay child support may be (temporarily) working at McDonalds, although his or her regular job is as an engineer. The court will rarely take actions like this lightly and does not look kindly on deliberately unemployed parents, as both parents are expected to contribute to the expenses of their children. The court may also require a non-working spouse to report all efforts to seek employment.

Can a Divorce Decree Be Modified if a Previously Unemployed Spouse Finds Work?

Spousal support could potentially be modified if the receiving spouse was unemployed when the support was awarded and now has a job. If the spousal support award is substantial, this may prevent the spouse from even looking for work. A modification of spousal support or child support requires a substantial change in circumstances. Determining what constitutes a "substantial change" is on a case-by-case basis but can include the following:

• Change in employment status of either spouse

• Salary of the spouse who just became employed

• Efforts to become self-supporting by the receiving spouse

• Duration of spousal maintenance payments yet to be paid

It is worth noting that spousal support modifications can be requested when the paying party loses his or her job – if the loss is not deliberate.

Will One Spouse Have to Pay All the Attorneys’ Fees for the Divorce if the Other is Unemployed?

In the state of Illinois, the court may order one spouse to pay the attorney’s fees of the other spouse if there is significant financial disparity between the two or if one spouse is currently unemployed. The goal is to ensure both parties have fair access to legal representation during a divorce.  

Speak With a DuPage County, IL Divorce Attorney

If you are considering divorce and your spouse is unemployed, you should discuss your situation with an experienced Wheaton, IL divorce attorney. The lawyers at The Stogsdill Law Firm, P.C. can help you understand Illinois divorce law and determine the best options available. Our firm is one of the most prestigious law firms in the area. We are a large firm with extensive experience and resources that benefit our clients. Contact us today at 630-462-9500 to schedule a confidential consultation.