Marriages end for many reasons. For some couples, that reason is one spouse abusing drugs or alcohol. In some cases, the intense emotions of divorce causes one or even both spouses to turn to drugs or alcohol to numb those feelings of hurt, resentment, anger, or bitterness. Substance abuse can have a significant effect on your divorce. If proven, substance abuse can influence decisions regarding child custody, asset distribution, and even alimony. Even false allegations of a substance abuse problem can be problematic. Whether you are concerned about your spouse’s substance abuse, or have been accused of it yourself, protecting your interests and rights in the divorce is critical. Schedule a consultation with a compassionate divorce attorney at Johnson O’Keefe by calling (312) 319-4444 to learn more about how substance abuse may impact spousal support and other aspects of your divorce.
What Is Alimony?
Alimony, also called spousal support or maintenance, are court ordered financial payments from one spouse to the other after they have divorced. These payments are intended to help the lower-earning spouse maintain their standard of living as it was established during the marriage. There are four kinds of alimony that Illinois courts may award:
- Temporary: This kind of alimony is ordered and paid only while the divorce is pending. Once the divorce is final, temporary alimony stops but may be replaced by one of the other types of alimony.
- Fixed-Term: This type of maintenance is for a specified amount of time, such as one year or ten years. The term is based on the duration of the marriage, among other factors.
- Reviewable: Similar to fixed-term alimony, reviewable alimony is reviewed periodically. Instead of ending at the end of each period, reviewable alimony may continue as long as certain requirements are still being met. If circumstances have changed, this kind of alimony may end upon the next review.
- Permanent: Permanent alimony is indefinite and can last for the life of either the payor or recipient, depending on who dies first. There are exceptions that can end permanent alimony, such as if the recipient remarries. This type of alimony is typically only awarded in divorces where the couple was married for 20 or more years.
How Is Alimony Calculated in Illinois?
Before detailing how alimony is calculated, it is important to remember that spousal support is not guaranteed in an Illinois divorce. The court considers several factors to determine if it is appropriate to award alimony. One of those factors is the combined income of the parties. Illinois has guideline and non-guideline alimony. Guideline alimony uses a specific formula if the combined gross income of both spouses is less than $500,000, and non-guideline alimony deviates from that formula for divorces in which the combined income of both spouses is more than $500,000.
Per 750 ILCS 5/504, when the combined gross income of the spouses is less than $500,000, alimony is calculated by taking 33 ⅓% of the payor’s net annual income and subtracting 25% of the payee’s net annual income from it. The result is the amount of alimony. When the amount calculated as alimony is added to the recipient’s net income, it cannot give them more than 40% of the combined net income of both spouses.
What Factors Are Considered in Awarding Alimony?
Income is not the only factor that determines alimony. In fact, income may not even be the most important factor. There are several factors that the court considers when determining whether it is appropriate to award alimony.
The factors the court considers include:
- Each Spouse’s Income: Income is a significant factor. If one spouse earns much more than the other, alimony may be more likely. All public and private income sources are included, including disability and retirement income.
- Duration of Marriage: Alimony is less likely in a marriage of six months or a year than it is in a marriage of 20 years or more. Alimony is also often awarded for half the length of the marriage, meaning that an individual may receive alimony for three years if they were married for six years.
- Standard of Living Established in Marriage: The court looks at the standard of living established during the marriage and weighs whether the lower-income spouse could maintain that standard without alimony.
- Each Party’s Needs: If one party is keeping the marital home and the other party must rent or buy a new home, this may influence alimony. Other needs may also influence alimony.
- Asset Division: How the assets are divided can significantly impact alimony. If the lower-income spouse received more of the marital assets, they may not be awarded alimony.
- Each Spouse’s Separate Property: If the lower-income spouse has any significant separate property, such as an inheritance or real estate, they may not be awarded spousal support.
- Impairment to Present or Future Earning Capacity of Either Party: Impairments to earning capacity can include chronic health conditions, lack of education, or other factors. If either party has an impairment to earning capacity, alimony may not be awarded.
- Effect of Child Custody Arrangements: Custody of small children can lead to a parent not being able to seek employment or reducing their work hours. This can influence alimony; however, child support can also influence spousal maintenance.
- Contributions and Services to Education or Career: If one spouse made significant contributions to the education, training, career or potential career, or license of the other spouse, they may be awarded alimony.
- Prenuptial Or Other Valid Agreements: Prenuptial and other valid agreements may stipulate whether alimony is an option, how much or how long alimony will be, and other details. These agreements can override any potential decision by a judge, especially if the agreement indicates that alimony will not be awarded to a spouse with a substance abuse issue or that the non-addicted spouse will get additional alimony due to the issue.
- Overall Life and Work Factors: General factors such as age, health, station, occupation, estate, and liabilities of each party are all considered.
- Any Other Factors the Court Deems Just and Equitable: While not listed in the statute, judges can consider other factors if they deem them to be relevant. This includes factors such as substance abuse.
How Can Substance Abuse Impact Alimony?
Substance abuse is not specifically addressed legally as something that can impact alimony. However, if one spouse has an active alcohol or drug addiction, it can influence whether spousal support is awarded and if it is, how much and for how long. There are different ways substance abuse can affect alimony.
Support Agreements
Many couples sign prenuptial agreements or other agreements before or after marriage. If one spouse has previously suffered from substance abuse issues or if they have seen substance abuse hurt their parents’ or other marriages, the other spouse may make them sign an agreement indicating what will happen with alimony. These agreements may state that the addicted spouse will not receive alimony unless they can prove they are sober or they may indicate that the non-addicted spouse will be awarded a set amount of alimony if the addicted spouse does not remain sober.
In most cases, a spouse would be required to show that the substance abuse issue is currently happening or happened recently for it to impact alimony. However, with these agreements, it is possible to retain evidence and use a relapse from several years in the past to impact alimony.
Increase or Decrease Alimony
A spouse dealing with active addiction can be either the payor or recipient of alimony. If the spouse who abuses drugs or alcohol is the recipient, the judge may award reduced alimony or a shorter time to receive it. The court does not want to encourage or enable the substance abuse, nor do they want the payor’s money being used for it. However, they do want to ensure the individual maintains a standard of living.
If the spouse with the substance abuse issue is the payor, they may be ordered to pay more alimony. This may be because the substance abuse significantly impacted the couple’s finances and caused the non-addicted spouse to shoulder a bigger financial burden during the marriage. The judge may also do this because the non-addicted spouse has a less financially secure future as a result of the addicted spouse’s decisions during the marriage. In some cases, the substance abuse affects the addicted spouse’s ability to work and earn an income, and alimony will be increased because the non-addicted spouse will need more money to maintain their standard of living.
Dissipation of Assets
Unfortunately, individuals who abuse drugs and alcohol do not make wise financial decisions. They will use up savings, sell or trade assets in exchange for drugs or alcohol, and engage in other wasteful spending and reckless financial decisions in order to support their addiction. These decisions may result in what is called dissipation of assets.
If the judge determines that one spouse dissipated assets due to substance abuse, they may order that spouse to pay more alimony. Additionally, dissipation of assets may change how the remaining assets are divided. Property division is a factor in determining alimony, which means that the change in how the remaining assets are divided can also result in changes in alimony.
Child Custody and Support
The non-addicted spouse may be granted custody of any children the couple share. This can result in receiving child support, but can also limit the parent’s ability to work. These changes can also influence alimony.
How to Prove (or Disprove) Substance Abuse
750 ILCS 5/401 states that Illinois is a no-fault divorce state. This means that irreconcilable differences are the only reason required for divorce. Therefore, a person is not required to cite substance abuse as their reason for divorce. However, if they wish to use the substance abuse to persuade the judge to award additional alimony, get child custody, or any other reason, they will need to prove the abuse. Alternatively, if a person has been accused of substance abuse but is not abusing drugs or alcohol, they will need to be able to prove this as well.
Gather Evidence
Evidence such as medical records and treatment history can be used both to prove someone is struggling with substance abuse and that they are not. These records can also be used to show that someone struggled with substance abuse in the past but is currently sober. A substance abuse issue in the past when the individual is currently sober is unlikely to impact alimony.
Other records that may be used to show an ongoing substance abuse issue are records of incidents involving the police or child protective services. These can include arrests for driving under the influence and for disorderly conduct or assault, if the record indicates the individual was intoxicated at the time. In some cases, these records can be used to show that someone called the police or child protective services and claimed the individual was intoxicated but that they were not, which can be used to prove there is no substance abuse issue as well as that someone made false allegations.
Find Witnesses
If someone has a substance abuse issue, others may have witnessed it. Employers, co-workers, friends, family, and neighbors may all have been a witness to someone being intoxicated, purchasing large amounts of alcohol or purchasing drugs. If the abused substance is prescription drugs, witnesses may have seen the individual taking too many doses or may have been asked if they had the particular drug in question. Friends, family, or neighbors may also have discovered missing medication after the addicted individual visited their home. Statements from these witnesses may help prove a substance abuse issue.
Keep Financial Records
If there are records that show the addicted spouse depleted the couple’s finances or sold or traded marital assets to purchase drugs or alcohol, showing these records to the court can help prove the substance abuse issue. Even bank statements showing numerous large withdrawals of cash can be helpful. Illinois does not require the spouse making the accusation of substance abuse to prove the accusation. Instead, the spouse being accused must disprove it.
Therefore, if a spouse is making the accusation, showing statements with many cash withdrawals (of any size) can put the burden on the other spouse to prove the cash was not spent on drugs or alcohol. Alternatively, if someone knows their spouse may or will accuse them of substance abuse, they should try to avoid making cash withdrawals or engaging in other financial activities that could look suspicious. If they do make cash withdrawals or engage in potentially suspicious financial activities, they may want to keep other records that prove how that money was spent in order to prove they did not use it to purchase drugs or alcohol.
Ask for Drug or Alcohol Testing
Drug or alcohol testing can be an almost-guaranteed method of proving or disproving a substance abuse issue. American Addiction Centers indicate that alcohol can show up in test results for a minimum of 12 to 24 hours. Heavier use can result in a positive urine test up to 72 hours later, and alcohol shows up in hair for up to 90 days. The National Library of Medicine indicates that drug test results can show use for time periods of just a few hours before the test up to a full year before the test, depending on the type of test being used and the drug(s) being tested for.
However, people have learned methods of cheating on these tests. They may dilute a urine sample with water or get urine from someone else, or adulterate their sample with chemicals. While these methods may not prove or disprove a substance abuse issue, they will provide a delay during which the individual can stop drinking or using drugs so that they stand a better chance of passing the second test. Additionally, there can be questions about who will pay for testing and it can result in ongoing testing to prove the individual has gotten or remains sober. Before requesting a drug or alcohol test for your spouse or volunteering to take one to prove allegations are false, individuals may wish to consult with a divorce attorney from Johnson O’Keefe to learn more about the impacts.
Protecting Your Finances and Assets in a Divorce With Substance Abuse Concerns
The same law that states Illinois is a no-fault divorce state also states that while an uncontested divorce has no waiting period, if the spouses are not in agreement to divorce, there is a six month waiting period. This means if one spouse wants the divorce and the other does not, they must wait. The law also indicates that spouses must have lived in Illinois for at least 90 days before filing for divorce, or for six months if the couple has children. During that three to six month period, if the couple is required to wait, the spouse dealing with substance abuse issues can do significant damage to assets and finances.
Separate Finances as Much as Possible
Wherever possible, individuals who believe their spouse has a substance abuse issue should separate their finances from their spouses. This includes opening a separate checking and savings account in the individual’s name only. In some instances, it may also include transferring utilities into the individual’s name or removing their spouse from accounts. However, individuals may want to consult with an attorney to confirm which accounts they can remove their spouse from and what other changes they can make to ensure they do not make a change that could appear as though they are trying to hide assets or otherwise engage in illegal activity.
Ask About a Temporary Restraining Order on Assets
People with substance abuse issues may resort to selling or trading items of value if they cannot get enough cash to buy drugs or alcohol. If an individual is concerned that their spouse may do this, and may sell or trade marital assets when they do, they may want to consult with an attorney. In some cases, a court will issue a temporary restraining order that prevents either spouse from selling or transferring marital property without permission. This can help to protect marital assets until they can be divided as part of the divorce.
Review All Joint Accounts Regularly
If there are joint accounts that the individual is unable to close or remove their spouse from, the individual should review these accounts regularly for any changes. If they find changes that they did not make, they should retain proof of those changes, including statements and screenshots. Additionally, the individual can speak with their attorney to find out if the accounts can be included on the temporary restraining order if they have one. They may also ask the institution holding the account if there is a way to freeze the account so that neither spouse can do anything to it in order to protect it until it can be closed or the spouse removed.
Separate as Much Debt as Possible
While both spouses will retain any debt they had prior to the marriage and will split debts incurred during the marriage, separating these debts and ensuring that both spouses are not responsible for new debts once they separate can be important. This can include taking steps such as removing a spouse from joint credit cards, revoking any powers of attorney they may have given their spouse, and thoroughly reading any document their spouse asks them to sign to ensure they are not agreeing to take on a debt.
Inventory and Protect Assets
Having a temporary restraining order preventing the sale or transfer or marital assets and taking other steps will not be of much use if the individual does not know what all of those assets are. Individuals should take the time to inventory all marital assets, including real estate, bank accounts, jewelry, artwork, and motor vehicles. Individuals should note details about these assets, such as addresses, account numbers and balances, serial numbers, vehicle identification numbers (VIN), or other identifying details that would allow the identification of the asset if it were sold or transferred.
Additionally, the individual should also inventory their separate assets and take steps to protect these assets from their spouse. While they are separate and therefore, do not legally belong to the spouse, if the spouse has a substance abuse issue, they may ignore that and try to steal an asset to continue using their substance of choice. Individuals should ensure their spouse does not have access to accounts containing separate assets, and secure portable assets such as jewelry in a safe, safety deposit box, or storage unit their spouse cannot access.
How a Chicago Divorce Lawyer From Johnson O’Keefe Can Help You Understand Your Rights
Substance abuse takes a toll on people and relationships. Whether your marriage is ending as a result of the addiction, or the addiction is a result of the divorce, both you and your spouse are likely to suffer emotionally and mentally. However, a non-addicted spouse should not have to suffer financially. A spouse being falsely accused of substance abuse should not have to suffer financially either. Because substance abuse can impact alimony, among other things, individuals may wish to speak with an attorney to learn more. Whether you are a sober spouse concerned about how your spouse’s substance abuse may affect your spousal support, or a spouse being accused of substance abuse, contact Johnson O’Keefe at (312) 319-4444 to review your case and find out more about your legal options.