What Happens if Someone Quits Jobs in the Middle of a Divorce?
By Beverly Bird
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It's not an uncommon occurrence; faced with paying child support or alimony, a spouse might decide mid-divorce to earn a little less income or eliminate income entirely. Lured by the possibility of receiving alimony and not having to work, a spouse might do the same thing. The court system is not that easily manipulated, however. Most states have legal mechanisms and procedures in place to deal with unemployed or under-employed spouses, before, during and after divorce.
If a spouse decides mid-divorce that he's not going to work anymore, it's highly unlikely that this will relieve him of his obligation to pay child support or spousal maintenance. If he quit rather than being laid off or fired, this was a deliberate choice on his part, not a stroke of misfortune that a court might take into consideration. Most courts will impute income to him -- the judge will base support calculations on how much he could realistically earn if he were still employed. In one case, a Texas court went so far as to use the most income a spouse had ever earned, ruling that this reflected his true earning potential. If a spouse quits in the middle of a divorce, however, a judge would probably base a support order on what he was earning right before he left his last job.
In most states, alimony is based on one spouse's need and the other spouse's ability to pay. A spouse isn't likely to have much success if she quits her job mid-divorce to create an artificial need for support. If she had a job when the proceedings began, she established to the court that she's capable of working and earning a living. If you're faced with paying alimony to a spouse who becomes voluntarily unemployed in before or during your divorce, you or your attorney can ask the court to order her to undergo a vocational evaluation; this creates a record of her earnings potential. A professional investigates such factors as your spouse's experience, education and age, and gives the court an expert opinion as to how much she could potentially earn. Just as it does when imputing income to a paying spouse, the court would then base your spouse's need for alimony on what she could earn if she got a job.
If your spouse was flipping burgers at a fast food restaurant when she quit, and if she's just shy of earning her college degree, a court might order you to pay her rehabilitative or temporary alimony. This is particularly true if she quit school in the interest of your family, such as if you had children. This type of support is ordered for a relatively short period of time. It allows the receiving spouse to finish school or brush up rusty work skills so she can become more self-supporting. If she decides not to work after she's able to secure a good job, alimony typically stops anyway. Not working becomes a voluntary election on her part and a court generally would not order you to support her because of her choice.
Divorces can have unique circumstances, and family court judges must often look beyond the surface facts of a case to determine what’s fair. If you have young children, and you and your spouse historically worked opposite shifts so one of you was always home to care for them, she might quit her job when you move out to be with the children. Depending on your personal circumstances, a judge could conceivably order you to pay alimony in this situation. However, it would probably be for a limited period of time, just until your children begin school or you can make other child care arrangements. Likewise, if she quit her job because of a hostile work environment or harassment, a court might accept this -- but, she would be expected to look for another position immediately. Alimony would typically be of limited duration, not permanent, in a situation such as this.
- Frascona, Joiner, Goodman & Greenstein: Maintenance (Alimony) Myths and Realities
- Dallas Divorce Lawyer Blog: How the Courts Are Affecting the Parent-Child Relationship – Recent Opinions on Intentional Employment and Underemployment
- Robin Roshkind: What is a Vocational Evaluation and When is it Used in Court?
- Tracy Fischer Mediation: New Massachusetts Alimony Law
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.