The newsletter of the ISBA’s Standing Committee on Women and the Law
Divorce among professional women
A recent study found that professional women are three times as likely to get divorced than their stay-at-home counterparts. Why this phenomenon exists is a mystery. One possibility is that because of their status in their workplace, career women are less likely to remain in an untenable situation at home. Another possibility is that a financially independent woman is in a better position to leave if she is unhappy. Of course, there is also the inherent tension relating to division of labor in dual income families that may lead to dissatisfaction in the marriage.
Not only are professional women more likely to get divorced, but the number of women paying alimony has almost doubled since the late 90s. This is because one third of all married women are the primary breadwinners. Their status as the primary breadwinner exposes them to having to support a financially dependent spouse after the marriage is dissolved through the use of alimony, known in Illinois as maintenance.
Moreover, working women are particularly vulnerable to claims that they are not the primary caretaker of the children (and should not be awarded custody of the children), while in the vast majority of the cases, they are, indeed, the ones who are taking care of the kids and managing the household.
How does one protect themselves from such claims in the event of a divorce?
Ask for a premarital agreement. In recent years, there has been a marked increase in the number of woman seeking premarital agreements, and with good reason. Illinois law permits a party to waive maintenance in a properly formalized premarital agreement. A court can only invalidate such a waiver at the time of divorce if its enforcement would create an undue hardship and if the circumstances that created the hardship were unforeseeable at the time the agreement was executed. A good premarital agreement will expressly set forth a litany of circumstances that would be deemed foreseeable, such as cessation of employment, birth of children, sickness or disability.
Further, while a premarital agreement cannot bind a court with respect to child related issues, there is no reason it cannot be used to demonstrate the parties’ intent. An agreement which states that the parties intend that the woman will continue to work, but will also serve as the primary caretaker of the children, may be used as evidence in the event her primary caretaker status is later questioned.
Cut your losses. The longer the marriage, the greater the maintenance exposure. Typically, maintenance is not awarded in very short-term marriages, but can be awarded permanently in marriages of long duration. Every additional year of marriage may result in a longer maintenance award. While there may be many good reasons to try to repair a marriage, if it is clear that the marriage is irretrievably broken, it may be better to get out quickly if you are vulnerable to a maintenance claim.
Encourage your spouse to find a job. Illinois divorce law favors the status quo. If one spouse was not working during the marriage, it is unlikely the court would require them to seek employment upon a filing for divorce. Similarly, if a party is working during the marriage, the court will not condone voluntary underemployment once a case has been filed. Even in those situations where one’s husband is unemployed, it may be a good idea to have full time child care to help mitigate against later claims that the husband is the primary caretaker.
Protect Non-Marital Assets. Many professional women have accumulated assets prior to marriage. Property acquired before a marriage is considered non-marital property and will be awarded solely to the owner in the event of a divorce. It is critical, however, to keep premarital property segregated and to refrain from making additions during the marriage in order to avoid a later claim that the property has evolved into marital property. Also, maintenance can be paid from marital or non-marital property so segregation is not a total protection against potential claims in the event of a divorce.
Hire a matrimonial lawyer with experience representing professional women. The custody and financial issues confronting a professional woman are unique and complex. It is important to seek an attorney with experience in this arena so that your case is presented in the best light leading to the most successful possible outcome. ■