Ask RJSR: Can I Avoid Paying Maintenance in Illinois?

A common question in Illinois divorce cases is simple to ask but more complicated to answer: How can I avoid paying maintenance to my spouse?

The better way to frame the issue is not whether there is a trick for avoiding maintenance. It is whether maintenance is appropriate under the facts of the case and, if so, what income the court should use for each spouse.

Timing Matters

If divorce is still years away, increasing the lower-earning spouse’s ability to support himself or herself can matter. Additional education, returning to the workforce, developing marketable skills, or increasing work hours may change the maintenance analysis later.

Once a divorce is already pending, however, the focus becomes much more fact-specific. Illinois courts consider statutory maintenance factors and then, when guideline maintenance applies, use the parties’ net incomes in the calculation.

Illinois law also contains a 40% limitation: after adding guideline maintenance to the recipient’s net income, that amount cannot exceed 40% of the parties’ combined net income. That limitation can reduce the guideline amount and, depending on the parties’ incomes, can sometimes reduce it to zero.

You can test different income assumptions using the RJSR Illinois Maintenance Calculator.

What If a Spouse Is Not Working or Is Underemployed?

A spouse’s current paycheck is not always the end of the analysis. When maintenance is disputed, a court may consider whether a spouse is voluntarily unemployed or underemployed and whether that person could reasonably be earning more.

That is where imputed income can become important. In the right circumstances, a court may attribute income to a spouse based on earning capacity rather than simply accepting current earnings at face value.

For example, suppose a spouse is healthy, has no child-care limitation preventing full-time work, has advanced education or marketable skills, and is choosing not to work. The court may consider what that person reasonably could earn.

Minimum Wage May Be Only the Starting Point

One possible starting point for an employable spouse who is not working is full-time minimum-wage income. Using the example discussed in the video — $15 per hour, 40 hours per week, and 52 weeks per year — produces annual income of about $31,200.

But minimum wage is not necessarily the right answer. If the spouse historically earned $60,000, $70,000, or $80,000 per year and is now voluntarily unemployed, there may be an argument that income should be imputed at a level closer to that person’s actual earning history.

The evidence matters. Work history, education, licensing, health, parenting responsibilities, time out of the workforce, local job opportunities, and the circumstances surrounding a reduction in earnings can all be relevant.

Reducing Your Own Income Can Backfire

The same principle applies to the spouse who may be paying maintenance. Intentionally quitting a job or reducing income does not necessarily reduce the support obligation.

If someone has historically earned $300,000 per year and voluntarily leaves that job simply to avoid maintenance, the court may still use an income figure based on established earning capacity rather than the newly reduced income.

In short, voluntary underemployment can be an issue for either spouse.

A Court May Require a Job Search

When an employable spouse is not making reasonable efforts to work, a court can also examine job-search efforts. In an appropriate case, a party may be required to look for suitable employment and document those efforts.

That type of evidence can help a court decide whether unemployment or underemployment is genuine or voluntary. Similar earning-capacity questions can also arise in child-support cases.

The Practical Question Is Earning Capacity

The central takeaway is that maintenance is not always based only on what appears on today’s pay stub. When one spouse is unemployed or underemployed, the court may need to decide what that person reasonably could be earning.

That determination can materially change whether maintenance is payable and, if so, the amount.

This article is general information and is not legal advice. Maintenance decisions are fact-specific, and the law should be reviewed based on the circumstances of each case.