Voluntarily Unemployed Spouse in Illinois Divorce

24 min read
By Jonathan D. Steele
Voluntarily Unemployed Spouse in Illinois Divorce

When a Spouse Refuses to Work During Illinois Divorce: Legal Strategies for Addressing Voluntary Unemployment

Few situations in divorce proceedings create more frustration than watching your spouse deliberately avoid employment to manipulate support calculations. You've worked hard throughout your marriage, built a career, and now face the prospect of supporting someone who appears perfectly capable of working but simply chooses not to. This scenario plays out in courtrooms across Illinois every day, from Chicago's Daley Center to suburban Cook County courthouses and beyond.

The good news is that Illinois law does not reward voluntary unemployment. Courts have developed sophisticated methods to address spouses who refuse to work, and the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/) provides judges with the tools necessary to ensure fair outcomes. Understanding how these legal mechanisms work can mean the difference between paying inflated support for years and achieving a result that reflects economic reality.

This comprehensive guide explores everything you need to know about handling a voluntarily unemployed spouse in Illinois divorce proceedings. We'll examine the legal standards courts apply, the concept of "imputed income," the evidence you'll need to gather, and the practical strategies that experienced family law attorneys employ to protect their clients' financial interests.

Understanding Voluntary Unemployment Under Illinois Law

Illinois courts distinguish between spouses who cannot work and those who simply will not work. This distinction carries enormous legal significance because it determines whether a court will calculate support based on actual income or on what the spouse could reasonably be earning if they made good-faith efforts to find employment.

The Legal Definition of Voluntary Unemployment

Under Illinois law, voluntary unemployment occurs when a party is deliberately unemployed or underemployed without reasonable cause. The Illinois Marriage and Dissolution of Marriage Act addresses this directly in the context of both maintenance (spousal support) and child support calculations. Section 504 of the Act (750 ILCS 5/504) governs maintenance determinations, while Section 505 (750 ILCS 5/505) addresses child support, and both provisions allow courts to look beyond current income when a party's unemployment or underemployment appears intentional.

The concept extends beyond simply refusing to seek work. Courts will also examine whether a spouse has:

The Burden of Proof in Voluntary Unemployment Claims

When alleging that a spouse is voluntarily unemployed, the burden typically falls on the party making the allegation to demonstrate that the unemployment is indeed voluntary. This means you must present evidence showing that your spouse has the ability to work, that jobs suitable to their qualifications are available, and that they have failed to make reasonable efforts to secure such employment.

However, Illinois courts have recognized that once a prima facie case of voluntary unemployment is established, the burden may shift to the unemployed spouse to justify their lack of employment. In In re Marriage of Sweet, the appellate court noted that when a spouse's employment history and qualifications suggest they should be earning income but are not, they bear the responsibility of explaining why.

Income Imputation: How Illinois Courts Handle Non-Working Spouses

The primary tool courts use to address voluntary unemployment is income imputation—the legal process of attributing income to a party based on their earning capacity rather than their actual earnings. This doctrine ensures that support calculations reflect economic reality rather than manipulation.

Legal Basis for Imputing Income in Illinois

Section 505(a)(3.2) of the Illinois Marriage and Dissolution of Marriage Act explicitly provides that if a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. The statute directs courts to consider numerous factors when determining potential income, including:

For maintenance calculations under Section 504, while the statute does not contain identical language, Illinois courts have consistently applied the same principles. The reasoning is straightforward: allowing a spouse to artificially reduce their income to maximize support payments would undermine the entire purpose of fair support determinations.

How Courts Calculate Imputed Income

Determining the appropriate amount of income to impute requires a careful analysis of multiple factors. Courts generally follow a systematic approach:

Step 1: Establish Employment History - Courts examine the spouse's work history, including positions held, salaries earned, and career trajectory. A spouse who earned $85,000 annually for the past decade cannot suddenly claim they can only earn minimum wage without extraordinary justification.

Step 2: Assess Qualifications and Marketability - Education, certifications, professional licenses, and specialized skills all factor into the analysis. A licensed accountant who refuses to work will likely have income imputed at a level consistent with accounting positions, not entry-level retail jobs.

Step 3: Examine Local Job Market - Courts consider the availability of suitable positions in the relevant geographic area. In metropolitan Chicago and Cook County, the job market typically offers abundant opportunities across most fields. Courts may consider job postings, Bureau of Labor Statistics data, and expert testimony regarding employment prospects.

Step 4: Consider Legitimate Barriers - Not all unemployment is voluntary. Courts must weigh factors such as documented health conditions, childcare responsibilities (particularly for young children), lack of work authorization, or genuine difficulty finding employment despite good-faith efforts.

The Role of Vocational Experts

In contested cases involving significant amounts of support, parties often retain vocational evaluation experts to provide testimony about earning capacity. These professionals conduct comprehensive assessments that include:

Vocational experts can be particularly valuable in cases where a spouse has been out of the workforce for an extended period, has outdated skills, or claims to have limitations that prevent employment. Their testimony carries significant weight with courts because it provides objective, data-driven analysis of earning potential.

Key Illinois Case Law on Voluntary Unemployment

Illinois courts have developed a substantial body of case law addressing voluntary unemployment in divorce proceedings. Understanding these precedents helps predict how judges will likely rule on your case.

In re Marriage of Gosney

In In re Marriage of Gosney, 394 Ill. App. 3d 1073 (2009), the appellate court addressed a situation where a father quit his job as an attorney to become a fishing guide, dramatically reducing his income. The court upheld the trial court's decision to impute income based on his previous legal career earnings, finding that his career change was not motivated by legitimate reasons but rather by a desire to reduce his support obligations.

This case established that courts will scrutinize career changes that conveniently coincide with divorce proceedings or support modifications. The timing of employment decisions matters significantly in these analyses.

In re Marriage of Baumgartner

The Baumgartner case, 237 Ill. 2d 468 (2010), addressed a mother who claimed she could not work due to the needs of her special-needs child. While the court acknowledged that caring for a disabled child can constitute a legitimate reason for reduced employment, it also emphasized that the burden remains on the parent claiming such limitations to demonstrate that no reasonable work arrangement would be possible.

In re Marriage of Heinze

In In re Marriage of Heinze, 257 Ill. App. 3d 782 (1994), the court found that a spouse who had not worked for several years during the marriage and had allowed professional licenses to lapse could still have income imputed based on earning capacity. The court noted that the spouse's decision to stay home was made jointly during the marriage, but that changed circumstances following divorce required reassessment of that arrangement.

In re Marriage of Ackerley

The Ackerley decision, 333 Ill. App. 3d 382 (2002), provides guidance on what constitutes adequate job search efforts. The court found that sending a few resumes and making sporadic inquiries does not constitute a good-faith effort to find employment. Rather, courts expect unemployed spouses to treat job hunting as a full-time occupation, with documented, systematic efforts to secure appropriate positions.

Proving Voluntary Unemployment: Building Your Case

Successfully arguing that your spouse is voluntarily unemployed requires thorough preparation and compelling evidence. Courts are appropriately cautious about imputing income—they need to be convinced that the unemployment is genuinely a matter of choice rather than circumstance.

Essential Evidence to Gather

Building a strong case for income imputation typically requires multiple types of evidence working together:

Employment and Income History Documentation

Educational and Professional Credentials

Evidence of Job Market Conditions

Evidence of Failed Job Search Efforts

Using Discovery Effectively

Illinois Supreme Court Rules 201-224 govern discovery in civil cases, including divorce proceedings. Strategic use of discovery tools can be crucial in voluntary unemployment cases:

Interrogatories should request detailed information about:

Requests for Production should seek:

Depositions allow you to question your spouse directly about their employment situation, pin down their claims, and explore inconsistencies in their position.

The Importance of Timeline Documentation

Courts pay close attention to the timing of employment changes relative to divorce proceedings. Documenting a clear timeline can be powerful evidence of intentional manipulation. Key dates to track include:

If your spouse quit their $100,000 job two weeks before temporary support was calculated, that timing speaks volumes about their motivation.

Common Scenarios and How Courts Handle Them

Understanding how Illinois courts have addressed specific factual situations can help you anticipate arguments and prepare your case accordingly.

The Stay-at-Home Parent Seeking Permanent Maintenance

Perhaps the most common scenario involves a spouse who stayed home during the marriage to raise children and now claims they cannot return to the workforce. Illinois courts take a nuanced approach to these cases.

For spouses who have been out of the workforce for extended periods, courts generally recognize that reentry takes time. A judge might order "rehabilitative" maintenance designed to support the spouse while they obtain necessary training or education to become employable. However, courts typically expect concrete plans with specific timelines—vague assertions about eventually returning to work are insufficient.

Courts will consider the ages of children. A parent with an infant may have legitimate reasons for limited employment, while a parent whose youngest child is in high school faces much higher expectations. The availability of childcare options and the other parent's ability to share parenting time also factor into the analysis.

The Spouse Who Quits Before or During Divorce

When a spouse leaves employment shortly before or during divorce proceedings, courts are highly skeptical of claimed justifications. Common excuses include:

"I was fired due to stress from the divorce." Courts will examine whether the termination was truly beyond the spouse's control. If the spouse was fired for cause—absenteeism, poor performance, or misconduct—courts may treat the unemployment as voluntary. If the divorce genuinely caused medical issues affecting work, proper documentation from healthcare providers will be essential.

"I decided to go back to school." While education may eventually increase earning capacity, courts generally will not allow a spouse to avoid support obligations by enrolling in school during divorce. Income may be imputed based on what the spouse could earn if working instead of attending classes.

"My job was too stressful." Stress alone rarely justifies leaving employment for purposes of support calculations. Courts expect adults to maintain employment despite normal workplace pressures, particularly during divorce when financial obligations are being determined.

The Underemployed Spouse

Underemployment can be just as problematic as complete unemployment. A spouse earning $30,000 when their qualifications would support $80,000 in earnings creates the same manipulation issues. Courts will examine whether the lower earnings reflect genuine circumstances or intentional income suppression.

Common underemployment scenarios include:

The Spouse with Health Claims

Claims of disability or health limitations require careful evaluation. Courts recognize that genuine health issues can prevent employment, but they also know that such claims can be exaggerated or fabricated to avoid work.

To successfully argue inability to work due to health issues, a spouse typically needs:

Courts may order independent medical examinations when they have concerns about the legitimacy of health-based work claims. Under Illinois Supreme Court Rule 215, either party may request that the court order an examination by a qualified professional.

Impact on Maintenance (Spousal Support) Calculations

Voluntary unemployment directly affects how Illinois courts calculate maintenance awards. Understanding the maintenance formula and how income imputation interacts with it helps you anticipate potential outcomes.

The Illinois Maintenance Formula

For marriages meeting certain income thresholds, Illinois uses a statutory formula to calculate maintenance. Under Section 504(b-1) of the Illinois Marriage and Dissolution of Marriage Act, the guideline amount is calculated as follows:

Maintenance = (33.33% of payor's net income) minus (25% of payee's net income)

The total maintenance award plus the payee's net income cannot exceed 40% of the combined net income of both parties.

When a spouse's income is imputed, the imputed amount is used in these calculations rather than actual (zero or reduced) income. This can dramatically affect the resulting maintenance figure.

Practical Example: The Impact of Income Imputation

Consider this scenario: John earns $150,000 annually. His wife Sarah stopped working when divorce was filed, claiming she cannot find employment. Her last job paid $60,000.

Without imputed income:

With income imputed at $60,000:

The difference of $12,000 annually over a multi-year maintenance term represents substantial money—potentially $60,000 or more over a five-year maintenance period.

Deviation from Guidelines

Illinois courts may deviate from guideline maintenance amounts when appropriate. Section 504(b-1) lists factors courts consider, including whether income has been imputed and the reasonableness of that imputation. A court finding that a spouse is deliberately avoiding employment might also consider this behavior when determining whether the guidelines produce an appropriate result.

Impact on Child Support Calculations

Child support in Illinois is calculated using an income shares model, which considers both parents' incomes to determine appropriate support levels. Voluntary unemployment by either parent affects this calculation significantly.

Understanding the Income Shares Model

Under 750 ILCS 5/505, Illinois courts determine child support by:

  1. Calculating each parent's net income
  2. Adding both incomes to determine combined net income
  3. Consulting statutory guidelines to find the basic support obligation for that income level and the number of children
  4. Allocating the obligation between parents proportionally based on their respective incomes

When one parent is voluntarily unemployed, using actual income ($0) would shift the entire support burden to the employed parent. Illinois law explicitly addresses this by permitting income imputation.

Statutory Language on Imputation

Section 505(a)(3.2) states: "If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income." The statute provides that potential income may be determined by:

The statute also specifies factors that may rebut a finding of voluntary unemployment, including that the unemployment is temporary, is in good faith, and is not intended to evade child support obligations.

Strategic Considerations in Cook County and Collar County Courts

Divorce cases in the Chicago metropolitan area present unique considerations. With a robust job market, extensive public transportation, and diverse industries, Cook County courts generally have high expectations for employment efforts.

Cook County Domestic Relations Division Practices

The Domestic Relations Division of the Circuit Court of Cook County handles thousands of divorce cases annually. Given this volume, judges have extensive experience identifying voluntary unemployment situations. Certain practices are common in Cook County:

The Metropolitan Job Market Factor

The Chicago area's diverse economy makes it difficult to argue that suitable jobs are unavailable. With major employers across virtually every industry—finance, healthcare, technology, manufacturing, education, hospitality, and more—claims that employment cannot be found receive heightened scrutiny. Courts expect unemployed spouses to demonstrate extensive job search efforts across multiple potential employers and positions.

For professionals with specialized credentials, the Chicago market typically offers substantial opportunities. Attorneys, accountants, healthcare professionals, engineers, and other credentialed workers face particular challenges in claiming inability to find work given the concentration of major employers in the area.

Procedural Steps for Raising Voluntary Unemployment

Successfully addressing a spouse's voluntary unemployment requires proper procedure. Simply asserting that your spouse should be working is insufficient—you must raise the issue correctly and present adequate evidence.

Raising the Issue in Initial Pleadings

When filing for divorce, your Petition for Dissolution of Marriage should include allegations regarding your spouse's earning capacity if you anticipate this being an issue. While specifics will be developed through discovery, laying the groundwork early establishes that income imputation will be contested.

Temporary Support Proceedings

Many divorce cases involve motions for temporary support while the case is pending. This early hearing presents an opportunity to address voluntary unemployment, but also carries risks. Courts making temporary support decisions often have limited evidence available, and challenging your spouse's claimed income without adequate documentation may be unsuccessful.

Consider whether to aggressively pursue income imputation at the temporary stage or reserve the argument for trial when more complete evidence is available. This strategic decision depends on factors including:

Discovery and Preparation for Trial

As discussed earlier, thorough discovery is essential. In complex cases, consider retaining a vocational expert early enough that their analysis can inform your discovery strategy. Their input on what evidence would be most valuable can guide your requests.

Presenting Your Case at Trial

At trial, be prepared to present:

Defending Against Unfair Income Imputation

This article has primarily addressed pursuing income imputation against an unemployed spouse. However, if you're the spouse whose income may be imputed, understanding the defenses available is equally important.

Legitimate Reasons for Unemployment

Not all unemployment is voluntary. Courts recognize numerous circumstances that justify reduced or absent income:

Challenging Excessive Imputation

Even when some income imputation is appropriate, the opposing party may seek to impute an unreasonably high amount. Defend against excessive imputation by:

Phased Approach to Imputation

Courts sometimes adopt a phased approach to income imputation, particularly for spouses who have been out of the workforce for extended periods. Rather than immediately imputing full earning capacity, the court may impute lower amounts initially with scheduled increases as the spouse has time to reenter the job market. This approach can be a reasonable middle ground when complete unemployment is unjustified but immediate return to full earning capacity is unrealistic.

Modifying Support When Circumstances Change

Support orders are not permanent. When circumstances change substantially, either party may seek modification. This applies to both voluntary unemployment situations and subsequent changes in employment status.

Seeking Modification Based on Continued Unemployment

If your divorce was finalized with income imputed to your spouse, but they remain unemployed years later, you may have grounds for modification. However, courts will examine whether the continued unemployment remains voluntary. A spouse who has made genuine efforts to find work without success may have a stronger argument that imputation should be reduced.

When the Unemployed Spouse Finally Finds Work

If your spouse obtains employment after divorce (whether voluntarily or through economic necessity), their actual income may trigger modification. If actual income exceeds the imputed amount, you may seek reduction in support. Conversely, if actual income is less than imputed, your spouse may seek an increase.

The Substantial Change Standard

To modify maintenance or child support in Illinois, the moving party must demonstrate a substantial change in circumstances. Section 510 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510) governs modification procedures. Changes in employment status—whether becoming employed, losing employment, or changing positions—frequently constitute substantial changes sufficient to warrant modification.

Practical Advice and Action Steps

If you're dealing with a spouse who refuses to work in your Illinois divorce, taking proactive steps early in the process significantly improves your chances of a favorable outcome.

Document Everything

Begin gathering evidence immediately. Collect tax returns, pay stubs, and any other documents showing your spouse's earning history while you still have access to them. Once divorce is filed, obtaining these documents may require formal discovery.

Retain Experienced Counsel

Voluntary unemployment cases involve complex legal standards and evidentiary requirements. An experienced Illinois family law attorney can evaluate your specific situation, advise on the strength of your income imputation arguments, and develop a strategic approach tailored to your circumstances.

Consider Expert Witnesses

For cases involving substantial support amounts, investing in a vocational evaluation expert can pay significant dividends. Their professional opinion carries weight with courts and provides objective support for your income imputation arguments.

Be Patient but Persistent

Proving voluntary unemployment takes time and effort. You may face initial rulings based on actual income while you build your case. Persistence through discovery, preparation, and trial will ultimately allow you to present the complete picture of your spouse's earning capacity.

Maintain Your Own Employment

While focused on your spouse's unemployment, don't neglect your own financial situation. Courts expect both parties to act reasonably. Maintaining stable employment strengthens your position and demonstrates the contrast between your behavior and your spouse's.

Key Takeaways

Understanding how Illinois law addresses voluntary unemployment in divorce is essential for anyone facing this situation. Here are the critical points to remember:

Protect Your Financial Future: Take Action Today

A spouse's refusal to work creates real financial harm—both during divorce proceedings and potentially for years afterward through inflated support obligations. Illinois law provides tools to address this unfair situation, but effectively utilizing those tools requires knowledge, preparation, and skilled advocacy.

The attorneys at Beermann LLP have extensive experience handling complex divorce cases involving voluntary unemployment and income imputation issues. Our team understands the legal standards Illinois courts apply, the evidence necessary to establish earning capacity, and the strategic approaches that lead to successful outcomes.

Whether you're facing a spouse who has conveniently become unemployed as your divorce approaches, or you're defending against unfair income imputation claims, Beermann LLP can help. We serve clients throughout the Chicago metropolitan area, including Cook County, DuPage County, Lake County, and surrounding communities.

Don't let a voluntarily unemployed spouse take advantage of the system at your expense. Contact Beermann LLP today to schedule a consultation and learn how we can protect your financial interests in your Illinois divorce.

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Jonathan D. Steele

Written by Jonathan D. Steele

Chicago divorce attorney with cybersecurity certifications (Security+, CEH, ISC2). Illinois Super Lawyers Rising Star 2016-2025.

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