Spousal support is often a contentious issue in marriages that are substantial in length, where one spouse has outearned the other spouse. Spousal support (formerly called alimony and often referred to as maintenance) is the payment of money from one spouse to another during and/or after divorce proceedings.
How is Spousal Support Determined in Illinois?
The first step in determining spousal support or spousal maintenance is to determine if the divorce case qualifies. In Illinois, the divorce court considers many factors when determining if a case is a “spousal support” or “maintenance” case, including the length of the party’s marriage, the income history of both parties, the future prospective income potential of both parties, their health, their need, their education level, their age, and more.
Once the case is deemed a maintenance case, there are two different components that factor into the calculation or formula for spousal support. The first factor is the “length” of the maintenance award, and the second being the calculation of the actual dollar amount of the award. The length of the marriage is determined from the date of the marriage through the date the divorce is filed (so, once the case is filed it “stops the clock” from ticking on how long the marriage is for purposes of maintenance only). And the longer you are married, the longer the maintenance duration will be, with increases in duration as the marriage goes on for longer. The dollar amount is mostly formulary, with limited exception for judicial discretion in higher-income divorce cases. Generally speaking, if a receiving spouse is employed, it can reduce the amount of maintenance that a spouse would have to pay to them as a portion of their income is used as a deduction in the formula.
5 Ways to Minimize or Avoid Spousal Support
So, if you are facing a divorce in Chicago how do you prevent yourself from paying maintenance, or otherwise lessen your maintenance obligation? Here are a few ways:
1. Avoid Spousal Support With a Prenuptial Agreement.
It is entirely possible for someone to agree not to receive maintenance in a prenuptial agreement prior to entering into the marriage. While there are limited exceptions where maintenance could be awarded regardless, for the most part, a properly drafted and executed premarital or prenuptial agreement could bar the recipient from receiving maintenance, no matter the duration of the marriage.
2. Already Married? Sign a Postnuptial Agreement.
A postnuptial agreement is essentially the same thing as a premarital or prenuptial agreement, except it is executed after the marriage takes place. These are sometimes less enforceable than a premarital or prenuptial agreement simply because they are signed after the marriage took place. Public policy provides that the postnuptial agreement’s intent must be to salvage the marriage and not to contemplate a divorce. Further, some aspects of a postnuptial agreement might take away property or monies that a spouse is already entitled to, since they are already married. A prenuptial agreement is a little bit different, as it contemplates the future and typically one is not signing away something, they already have a right to. Still, a properly executed postnuptial agreement could ease the burden of maintenance by eliminating it all together or setting what it would be in the event of a divorce.
3. Encourage Your Spouse to Stay Employed.
Parties who have young children often will have one parent who has to ease up on their work obligations due to childcare restrictions, which is understandable. In those scenarios, someone exiting the workforce for a period of time could be deemed to be at a disadvantage as to their future earnings. However, if the spouse stays employed or quickly becomes re-employed, it shortens two factors the Chicago courts may consider:
1. how long the spouse was out of work for; and
2. it increases the receiving spouse’s income, which can be used as a deduction against whatever the paying spouse may have to pay.
4. If Your Spouse Refuses to Become Employed, Look Into a Vocational Expert.
Vocational experts are a useful tool at trial in the appropriate cases. They can evaluate whether or not a person is underemployed or purposefully unemployed and can testify regarding the person’s income earning potential. In some scenarios, the income-earning potential could be imputed to the recipient of maintenance, which serves as a deduction in the maintenance formula, lessening the burden of what the paying spouse would have to pay. However, if it is clear someone could only earn minimum wage, you don’t typically need a vocational expert to come in and testify that the person can go work a minimum wage job. Courts will entertain that argument without an expert. A vocational expert is used when, for example, someone who has the degree and education to be an RN refuses to work, or works a part-time job at a clothing store, and says that they couldn’t get a job as an RN for a variety of reasons. A vocational expert could be used to “bump” up the person’s earning potential in the eyes of the Court. However, it is only appropriate for very narrow scenarios.
5. End the Marriage Immediately.
If you fear divorce is coming and you desperately do not want to avoid spousal support, or you do not want to pay as much spousal support as you would have to, it might be a good idea to file a case for a divorce. Filing a case does not necessarily mean you have to go through with it (though if your spouse decides they want a divorce, it will be eventually granted). You can dismiss the case at any time. But, since the date of filing determines the “end date” for the length of the marriage, filing sooner rather than later could mitigate how long you will have to pay maintenance for, so long as your marriage is less than twenty (20) years. Once you hit the twenty-year mark, the maintenance could be indefinite in duration.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/spousal-support/top-ways-to-avoid-spousal-support-in-a-chicago-divorce/