It is not uncommon for a spouse to quit or otherwise lose a job during the pendency of a divorce, particularly when spousal and/or child support is at issue. Can a spouse simply become unemployed by choice without consequence in the divorce itself?
In a word – no.
Sometimes during a divorce, a spouse can become sick or have an accident that either temporarily or permanently disables the spouse so that the earning capacity of that spouse declines for an extended period of time. When this happens, the court must take that changed condition into consideration when attributing income to that spouse. Obviously, a spouse who was earning $200,000 annually but now cannot work at all or may have restrictions that limit what the spouse could earn must by statute be considered by the court, as it would be unfair to impute income to that spouse if that spouse could never earn that income.
But the situation is very different when the spouse still has the capacity to earn the income the spouse earned during the marriage but that spouse, either voluntarily or involuntarily, ceases that employment. If a spouse earning $200,000 annually quits a job for the purpose of avoiding a large maintenance or child support obligation, the court can impute to that spouse the income that the spouse regularly earned during the marriage. But to do this, the court needs evidence – so it is important the other spouse gather sufficient evidence surrounding the loss of employment and the ability to procure similar employment in a reasonable period of time. Sometimes, this requires the spouse to hire a vocational rehabilitation expert to evaluate what the spouse could earn in the existing job market. Also, the court will look at the earning history and educational background of the spouse and could come up with a composite average it finds reasonable to assign as income for the basis of maintenance and child support calculations.
Voluntary unemployment for the purpose of avoiding financial responsibility is not taken lightly by the court system, as it is essentially a fraud upon the court. Any person who attempts this approach should be wary, because the court could begin to view that person in a very negative light, like the “boy who cried wolf,” and when a true financial emergency arises, the court will not believe that person. Additionally, that type of dishonesty and lack of support for the children could impact the court’s view in terms of custody.
Some changes in employment happen when couples split, and some may legitimately cause a temporary decrease in income. The other spouse, to protect future chances of increased income of the unemployed spouse, should try to get a maintenance order in place that would increase after six or twelve months to allow the other spouse to resume proper employment. Maintenance is subject to modification and could increase if circumstances warrant. But when the court fails to order any maintenance, the court cannot later order maintenance – so it is critical to get some maintenance order in place.
If you have questions about unemployment and divorce, contact us – we can help.