Divorce inevitably triggers a host of questions, such as how the property will be divided, who will get to stay in the family home, who will have custody of the children, or will the ex-spouse be required to make alimony (spousal maintenance) payments. Additionally, if you stayed home during the marriage, a divorce may make you wonder if you will have to return to work after the divorce.
For stay-at-home moms and stay-at-home dads, that last question is particularly worrisome, and the answer depends partly on the spouse’s future employment opportunities and his or her contributions to the marriage as a homemaker.
Property Division in Illinois
Illinois is an equitable division state, which is different from a community property state. When a couple divorces in Illinois, the marital property is not split 50/50; rather, the property is divided equitably. Thus, equitable is not synonymous with equal. There is no standard formula for determining what is equitable. Instead, the judge will consider a variety of factors, including:
- What each party contributed to the marriage, including contributions as a homemaker;
- The value of the property assigned to each party, both marital and non-marital;
- The duration of the marriage;
- Each party’s economic circumstances, such as future income opportunities;
- Whether either party receives child support or maintenance payments from a prior marriage; and
- Child custody payments.
(Note that in Illinois, the court may not consider marital misconduct when dividing marital property and determining maintenance and child support responsibilities.)
The Homemaker Contribution
A homemaker’s contributions are not taken lightly. Illinois deems marriage to be a “joint enterprise,” and the law does not penalize the partner who stays at home and takes care of the children. Just because you are a “homemaker” though does not mean you are entitled to a large payout. For example, the homemaker argument is automatically weakened if there are not any children in the picture. It is also weakened if household duties were divided equally or if your ex-spouse proves that you were actually a lousy homemaker.
The court may also order maintenance payments, even if it has already made a disproportionate property division (awarding one party substantially more of the marital property than the other party). Again, this comes down to future earning capacity and child-rearing responsibilities. A long-term homemaker may have put his or her career on hold and may thus have fewer future job opportunities. Consequently, Illinois law directs courts to consider “the reasonable opportunity of each spouse for future acquisition of capital assets and income.” Finally, if you do receive maintenance there is an obligation on you to seek out employment.
Unlike with division of the marital property, maintenance payments are not set in stone. Either party may seek a change depending on future economic circumstances or future marital relationships. This uncertainty makes it difficult to answer the initial question of whether or not you have to go to work now if you stayed at home during the marriage. Because of this uncertainty, it is important to seek an experienced Illinois family law attorney to guide you through the divorce process. We will ensure that you receive the assets you deserve. Contact us today for a consultation. We can assist those in Chicago and its surrounding counties.