Imagine the following scenario: Donald and his wife Melania decide they want to get a divorce. Donald has been employed as the President of the United States for the past two years, where he earns a salary of $400,000, and receives travel, expense, and entertainment perks. Melania mostly spends her days shopping on QVC, pampering herself at the spa, and taking tennis lessons while the nanny watches their son, Junior. In the judgment of dissolution of marriage, the court orders Donald to pay Melania $20,000.00 each month for child support until Junior attains the age of 18.
Two years pass after the divorce, and Donald finds himself running for reelection. However, because the stress of the first presidency took its toll on Donald, he goes to the barber and gets a buzzcut, in a vain attempt to assert some semblance of control over his life. Without his signature hairstyle, his polling numbers plummet, and he loses the election in a landslide so dramatic that even Walter Mondale has to laugh.
Donald now finds himself out of work, and struggles to find a suitable career in which to apply his unparalleled talent for bombast and bluster. He applies for a slew of entry level positions on monster.com, to no avail. Every prospective employer tells him that he’s overqualified. Destitute and feeling like he’s run out of options, Donald decides to start an extermination business called “Cockroach, You’re a Loser.” Donald exhibits a newly-discovered knack for the entrepreneurial, and nets a tidy profit of about $25,000.00 in his first full year of business. Because it is a far cry from his former earnings, Donald files a petition to reduce his child support obligation based on an involuntary reduction in income. Fearing a drastic reduction in her own standard of living, Melania asks the court to deny Donald’s request.
In Illinois, child support is determined based upon the income of the payor and other relevant statutory factors. In determining whether to reduce an order of support, the court may consider any substantial economic reversal resulting from a change in employment. However, the party seeking the reduction must show good faith for voluntarily changing his employment. See Marriage of Imlay.
A payor may not reduce his child support obligation by voluntarily quitting a job, or working below his earning capacity. For example, if someone quits his job (Marriage of Chenoweth) resigns without prospects of alternative employment, without making attempts to secure alternative employment (Marriage of Dall), or loses a job and becomes self-employed in an unprofitable capacity (Marriage of Deike), the court may determine that the change in financial circumstances was made in bad faith.
A crucial consideration in determining “good faith” is whether the change in status was prompted by a desire to evade financial responsibility for supporting the children or spouse, or to otherwise jeopardize their interest. Some courts have stated that the change in circumstances must be fortuitous in nature, and not the result of deliberate action or conduct of the party seeking the reduction. See Coons v. Wilder. In that case, the court articulated the following factors which should apply in the analysis: 1) the payor is voluntarily unemployed; 2) the payor is attempting to evade a support obligation; or 3) the payor has unreasonably failed to take advantage of an employment opportunity.
If a person acts in bad faith, the court can base support based on the payor’s past employment. Alternatively, the court may impute a “realistic income” income to the payor. If a court finds that it is appropriate to impute income, the court may average the payor’s income over the course of the prior three years to determine what a reasonable imputed income may be, or it may use a different method to determine income. The court will then calculate the payor’s child support obligation based upon the imputed income, using the statutory factors.
In the case of the Donald, there are arguments that can be made for both sides. On the one hand, he lost his job because he lost an election, ostensibly because he made a bad decision in the barber’s chair. However, it is probably reasonable to assume that a former head of state ought to be able to be find a better paying job than Donald’s upstart exterminating business. Were his efforts at finding suitable employment sufficient? Is his self-employment in a moderately profitable business sufficient to show good faith? Or does it tend to show that he is acting in bad faith?
If you find yourself confronted with similar questions, please contact us to ascertain how the law might apply to the facts of your case.