Gitlin Law Firm 2010 Illinois Divorce and Paternity Case and ...

ongoing maintenance. In Smith, a case which is factually similar to the case at bar,
the parties were married for 34 years and the 52-year-old wife had little prospect of
earning an adequate salary to meet her needs. In that case, the husband voluntarily
reduced his income by retiring during the pending divorce proceedings in an attempt
to avoid paying maintenance. Smith, 77 Ill. App. 3d at 862.
In that case, the court held:
“In our view, the word ‘ability’ indicates that we should consider the
level at which the maintenance-paying spouse is able to contribute,
not merely the level at which he is willing to work. Thus, we hold
that it was appropriate for the trial court to look at the husband's
prospective income, as well as his current actual income, in setting
the level of maintenance, particularly where the difference between
actual and potential income is a result of totally voluntary
retirement.” Smith, 77 Ill. App. 3d at 862.
In Smith, the court considered the circumstances surrounding the husband’s
retirement as it related to the divorce proceedings and found that his motives for
retirement were called into question. Smith, 77 Ill. App. 3d at 862-63. In that case,
the trial court determined that the husband chose to resign his position as president of
a company during the pendency of a dissolution of marriage proceeding to become a
consultant which reduced his income by 50%. Smith, 77 Ill. App. 3d at 862-63. On
appeal, the court upheld the trial court’s determination that the husband had the
ability to pay more maintenance than his current retirement income would seem to
allow based on his position at his previous employment. Smith, 77 Ill. App. 3d at
863. Regarding Earl’s current and prospective ability to pay maintenance, the record
reveals that Earl was healthy at the time of the divorce. He voluntarily opted to sell
his share of the Cipher and Baum Signs businesses during the pendency of the
divorce. First, the trial judge noted that Earl was not under any requirement to buy
into the new business, Correct Electric, after selling his ownership interest in Cipher
and Baum Signs. Next, the court observed that, while Earl voluntarily chose not to
buy shares in the new corporation himself, Earl voluntarily brought his girlfriend,
Mauk, into the new business by loaning her money to become the majority
shareholder in the new corporation that would ultimately compensate Earl as an
hourly employee. The court found that Mauk’s “ascension in the presidency of this
company or the person who was running this company was somewhat contrived.”
The appellate court then stated:
It is well established in Illinois, “[i]n order to impute income, a court must find that
one of the following factors applies: (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.” IRMO
Gosney, 394 Ill. App. 3d 1073, 1077 (2009); IRMO Rogers, 213 Ill. 2d 129 (2004).
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