AN OVERVIEW OF THE IMPACT OF UNEMPLOYMENT ON SUPPORT
Effective August 2010, the unemployment rate in Illinois was at 10.1%, half a percentage higher than the national average. Unemployment affects each family differently, but its impact is even greater when the family structure involves a support order. While the loss of a job impacts many aspects of a family law matter, this article will focus on support obligations.
If you are terminated from your employment, you should apply for unemployment benefits immediately. The application process may toll pending receipt of any severance pay. The Illinois Department of Employment Security has a comprehensive website to aid in your application, which can be done online. To quality for unemployment benefits, you must have earned the required “insured” wages, be unemployed of no fault of your own and be actively seeking work. Even if you begin receiving unemployment benefits, you can be disqualified from receiving such benefits if you are found to have quit your job, were discharged from your job for misconduct, or refused suitable new employment.
If you pay support pursuant to a court order as a result of family law litigation, you need to take several steps upon the termination of employment. First, you will need to ask the Court for relief for the modification. Your child support obligation continues until such time as another court order is entered. The Court can only grant you the relief you are seeking retroactive to the date you file your motion. Put simply, it is of paramount importance to be diligent in this filing. Notwithstanding the fact that loss of a job will hinder or otherwise make complying with a support order impossible, the receiver of support has the option of seeking a finding of indirect civil contempt for failure to comply with a support order. Penalties for non-compliance with a support order can be severe and may include the payment of attorneys’ fee. Thus, if you loose your job, you should seek legal assistance to ask the Court to modify your judgement.
You have a duty to continue to support your family, even through unemployed. Therefore, you should begin a job diary and maintain a daily log of your efforts to seek employment. In completing this task, keep a copy of the contact information for the prospective employer, information about the job applied for and the date and means you applied. This should take place immediately following the termination. While the loss of a job is devastating, you have to overcome the emotional aspects and mechanically take steps to move forward.
If you are the recipient of support pursuant to a court order and you are no longer receiving support, you are entitled to receive the same support set forth in that support order until modified by a Court. You also have the right to file a Petition with the Court seeking to hold the payor of support in contempt for failure to pay. Once you contact our office, we will guide you in making a strategy decision as to when that petition should be filed.
The recipient of support may also have a claim for support to continue under certain limited circumstances even if the payor losses a job. If the termination of employment was of the payor’s own volition or as a result of inappropriate conduct, there may be other routes to explore continued support. If you are the receiver of support, you may want to argue that your support payments should be made commensurate with the earnings that your spouse or former spouse made prior to the termination. In the event you believe your spouse or former spouse voluntarily terminated their position or believe that your spouse’s employment was terminated as a result of misconduct, and thus believe your support should be higher, we can help you present this argument to the Court. Be mindful, however, that due to the recent rise in unemployment and the overall weakened economy, it is difficult to argue that a party was fired “for cause” or that he or she should otherwise pay a higher amount of support (if unemployed) because their actions had a direct correlation on their termination. It is important to weigh the cost / benefit analysis before presenting the imputed income argument to the Court. If however there is bright line abuse, such that your spouse voluntarily terminated a position earning substantial sums to work part time for a fraction of the salary, your case is strong that support will be based off his or her previous earnings. These situations are case specific and should be analyzed completely before proceeding in litigation with our office.
In all honesty, there are no easy answers or bright line rules to follow when it comes to unemployment and divorce. It is important to speak with your attorney about all financial options to best address the needs of your family during this difficult time. Be mindful of your obligations and try to protect your credit. Seek legal advice as soon as possible. Finally, try to be positive about the next chapter of your life as you face career changes and a new job.
Our Family Law Group has free consultations available regarding these issues. Contact us today to schedule an appointment.