If you are thinking about filing for divorce, you may be concerned about the financial implications of such a decision. The process itself can be very expensive is some situations, but you could also be worried about making it on your own, especially if your spouse was the primary wage-earner in your family. To address this concern, you may consider including a request for maintenance with your divorce filing. Maintenance payments, sometimes known as alimony, may be ordered to help offset some of the economic challenges that can be created by your divorce. Such payments are not guaranteed, however, and the court must identify a spouse’s need before ordering it.
Need-Based Considerations
There are many factors that the court will take into account when deciding on the appropriateness of a maintenance order, including the lifestyle that the couple established in their marriage and how the marital property will be or has been divided in the divorce. As you might expect, each spouse’s income must also be considered, but the court will look at more than just how much you and your spouse actually earn. The Illinois Marriage and Dissolution of Marriage Act states that the court must also take into account “the realistic present and future earning capacity of each party.”
What Is Earning Capacity and Why Does It Matter?
A person’s earning capacity is the amount of income that he or she has the ability, training, certification, and qualifications to make, regardless of his or her current income. For example, a 19-year-old high school dropout who has been working in fast food restaurants has a much lower earning capacity than a 40-year-old business executive with a master’s degree. Earning capacity may become an issue in a maintenance proceeding, however, when one or both spouses are currently earning significantly more or less than their earning capacity would suggest.
Consider a divorce situation involving a husband who earns $150,000 as a mid-level manager and a wife who, despite a graduate degree in childhood development, a teacher’s certificate, and appropriate state licensing, has refused to work more than two days per week for several years, earning about $15,000 per year. Assuming the couple has no small children and the wife has no health or other concerns preventing her from working more often, a court could reasonably determine that the wife’s earning capacity is substantially higher than her current income. In making the determination for maintenance, the court may add an amount to her reported income to account for her unrealized earning capacity. While maintenance may still be appropriate, the amount of the award would likely be affected.A
A Wheaton Family Lawyer Can Help You Be Objective
Before you file your request for spousal maintenance, it is important to carefully analyze your financial situation. You should know in advance what the court might find if and when it looks into your case. An experienced DuPage County divorce attorney can help you review your situation and determine if your earning capacity could be challenged during the proceedings. To learn more, call 630-665-7300 and schedule a consultation at MKFM Law today.
Sources:
http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59
http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1150017.pdf
