Pay Up, Darling!

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You’re getting divorced and he wants your money.

Britney Spears pays her former husband $40,000/month in child support. But alimony isn’t just for the famous. According to a study by Pew Charitable Trust, almost a quarter of all married women earn more money than their husbands – an 18 percent increase since the 1970s. In some instances, this results in situations where the wife is employed full-time while the husband is home with the children. When those marriages end in divorce, as 50 percent of them do, it’s creating a new trend – women who are required to pay their husbands alimony and child support.

Some women feel particularly resentful of this support obligation because it was their husband’s inability to share the burden of supporting the family that led to the decision to divorce in the first place. Indeed, many working mothers continue to function as the primary caretaker to their children, even when they’re employed full time outside of the home. Unfortunately, these factors alone may not be enough to overcome an alimony claim.

Just as some women object to their husbands’ requests for spousal support, some men are uncomfortable seeking it. Many will avoid the embarrassment of asking for alimony by seeking a larger share of the marital assets. Not only does a lump sum buy-out save the humiliation of accepting monthly support payments, it’s also non-taxable to the recipient – unlike alimony, which is treated as income and subject to federal and state tax.

However, the social stigma attached to men seeking support from their ex-wives has diminished. For some men, it’s not necessarily their need for support but their feeling that they should be compensated for their contribution to their wives’ careers that drives their decision to seek alimony. Under Illinois law, when awarding alimony (known as maintenance), a court is to consider not only the strict needs and recourses of each party (i.e. income, needs and future earning capacity), but also more compensation-based considerations (i.e. contribution to the education or training of the other party). The goal is for both parties to be able to maintain the standard of living they would have enjoyed had the marriage remained intact.

In long-term marriages where there’s substantial disparity between the earnings of the two spouses, permanent alimony may be awarded. Permanent alimony is only subject to termination upon death, remarriage or cohabitation.

How does a woman protect herself against claims for support in the event of a divorce?

Ask for a premarital agreement.
In recent years, there’s been a marked increase in the number of women seeking premarital agreements. Previously, premarital agreements were almost always sought by men. Under Illinois law, a party can waive all rights to alimony in a properly drafted premarital agreement. A court can only invalidate this waiver if, at the time of divorce, its enforcement would create an undue hardship for the potential recipient and if the hardship could not be anticipated at the time the agreement was signed. A good premarital agreement will contain a provision that unemployment of a party will not be a sufficient reason to invalidate the alimony waiver.

Do not delay. The longer the marriage, the greater the exposure to an alimony claim. Typically, alimony is not awarded in very short-term marriages, but every additional year of marriage may result in a longer maintenance award. While there may be many good reasons to work on a marriage, if it’s clear that the marriage is irretrievably broken, it may be better to end it quickly.

Encourage your spouse to find a job.
Illinois divorce law favors the status quo. If a spouse wasn’t working during the marriage, it’s unlikely that a court will require him to seek employment upon the filing of a divorce. Similarly, if a party is working during the marriage, the court won’t condone voluntary underemployment once a case has been filed. In most situations, alimony will be denied if both parties are employed and self-sufficient.

As women ‘lean in’ to opportunities for education, property ownership and significant incomes, just as their male counterparts do, they may end up paying their partners thousands of dollars a month in alimony. Some may call this the price of equality, but it’s a cost that can be mitigated by appropriate planning.

Rosemary Fanti Illustration

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About Karen Pinkert-Lieb

Karen Pinkert-Lieb’s strong background in finance, tax law and psychology render her uniquely suited to expertly navigate complex custody and financial cases and advance her clients' interests. Her versatility as both a seasoned negotiator and a skilled litigator enable her to achieve the best possible results while always remaining dedicated to her client’s priorities. In addition to marital dissolution cases, Ms. Pinkert-Lieb also concentrates her practice in the areas of pre/post marital agreements, civil union dissolutions and complex parentage as a senior partner at Schiller DuCanto & Fleck LLP.