The gig economy is on the rise. In fact, the gig economy grew by a whopping 33% in 2020. In the United States, at least 16% of Americans have taken a gig from an online platform such as Upwork or Fiverr. However, the biggest source of gig jobs comes from ridesharing platforms, such as Uber and Lyft, and asset-sharing platforms like Airbnb. No doubt, a big driving factor in the gig work explosion is due to the COVID-19 pandemic. During COVID, many people lost jobs, and those that didn’t likely enjoyed new benefits such as the ability to work from home. Now that the economy is opening back up, many people are hesitating to return to their traditional 9 to 5s. Gig work, in contrast, offers freedom, flexibility, variety, and oh yea – no boss!
It’s no surprise that millennials and Gen Zers are taking to gig work like fish to water. As the generation of influencers and “lifestyle” enthusiasts, gig work provides the ultimate freedom to follow non-traditional paths. It’s no surprise that during the pandemic, at the same time that the gig economy was exploding, van life majorly took off. Why spend your life clocking in day-in day-out at the same office when you could hop from town to town, exploring and working as you please? Digital nomads, party of two!
Now, despite the countless positives that gig work provides, there are a few challenges presented by the new working model. One big example? Divorce. While it’s not a topic anyone really wants to think about, if you or your partner are a part of the gig workforce, there are important things to consider. Don’t worry, it’ll be fun (*wink*).
When a couple divorces, one of the spouses may be entitled to spousal support/alimony. Spousal support is an arrangement where one spouse makes payments to the less wealthy spouse post-divorce when certain factors are met such as need and ability to pay. Focusing on the ability to pay, this is relatively easy to determine when the spouse has a longstanding career where they receive a W-2 and earn relatively the same amount each year. In that scenario, the court is able to easily see what the spouse has earned and will be able to reasonably predict earning potential in the future. However, when one or both spouses are gig workers, things aren’t quite so easy. Gig workers’ income can fluctuate drastically seasonally and yearly. It can make it very difficult to determine what, if any, is an appropriate amount of alimony.
Additionally, the amount of alimony is typically calculated at the time of divorce and remains the same for the duration it is awarded. Clearly, this can present challenges for a gig worker. Let’s illustrate with an example. Following COVID, Charlie was laid off from his 9-5 job. With offices closed nationwide, Charlie pivoted and started picking up gigs here and there. Enjoying the work and the flexibility that came along with gig work, Charlie decided to forego getting another 9-5 and continued working for himself.
Down the road, he and his wife Anne decided to divorce, and the court awarded alimony to Anne. In the years prior to the divorce, Charlie was doing very well workwise and was maintaining a steady flow of projects. However, divorce presented some new challenges to Charlie’s work production. Charlie had to take more time to care for the kids, which had been handled by Anne prior to the divorce. Ultimately, he had to cut back and lost a big client.
However, the court looked at the last several years of Charlie’s income to set the amount of alimony – which is much higher than he is earning now. Charlie was now expected to pay this amount of alimony for the next several years. As you can see from this example, Charlie may have some difficulty paying the set amount of alimony if he cannot replace the lost gig or other factors require him to cut back even further. Additionally, other questions are presented such as: should Charlie be expected to find another project? And what if the pay is not the same as previous gigs? While alimony can generally be modified, doing so will likely require additional attorney’s fees and litigation expenses.
Another consideration is the lack of benefits that gig workers receive. W-2 employees are often entitled to benefits such as health insurance, life insurance, dental insurance, and retirement accounts. Without these benefits, gig workers may need to dip into their profits to pay for their insurance needs and to save for retirement. This can further complicate the alimony calculations. Plus, gig work can make it easier for parties to attempt to conceal income.
If kids are involved, the issue can get even more complicated. Calculating child support can present the same issues as calculating alimony. However, once the amount is calculated, enforcement of that amount may prove to be difficult. For example, when a parent fails to pay child support, that parent’s paycheck can be garnished. However, when the parent doesn’t receive an actual paycheck, garnishment may not be possible. In fact, even when it comes to independent contractors who receive consistent paychecks, the employer may not be obligated to withhold payments when the parent owes child support. Further, it may be easier for parties to conceal income they receive as gig workers or independent contractors. And again, enforcement likely call for more attorney’s fees and litigation expenses. Not ideal!
So, with all of these considerations in mind, what can you do to avoid these divorce pitfalls? Why a prenup, of course! Prenups essentially allow you and your fiancé to make divorce decisions in advance, before the breakdown of the relationship. We know, we know, not exactly what you want to talk about while you’re still in the honeymoon phase, but trust us, the peace of mind is priceless. And what if we told you that prenups are actually romantic? It’s true! Getting on the same page with your partner is an act of love and sets a solid foundation for your marriage.
Ok, back to gig considerations. You and your partner can use your prenup to make decisions about alimony. For example, you can limit or completely eliminate alimony altogether. This sets clear expectations and simplifies the calculations down the road. The options are really endless. You can set alimony caps, you can decide that alimony is off the table unless you’ve been married for twenty years, and you can even include sunset provisions which allow you to renegotiate alimony down the road. The list goes on and on.
Additionally, In the place of alimony, you can make property division arrangements to ensure that the potential split is amicable and fair. This can be especially helpful for gig workers where income fluctuates so much. One quick side note, gig work can have an impact on child support in addition to alimony, but you cannot include any provisions related to child support in your prenup.
Ok, before you and your fiancé hit the road in your camper van, get started on your prenup! Perhaps, as part of the gig economy, you both want to simplify the process and eliminate alimony altogether. In its place, you can decide to structure the division of property in ways which result in a fair and amicable divorce (in the off chance it happens!). And don’t forget, you have to get your prenup signed, sealed, and delivered before the wedding day! Ready to go? Get started on your prenup here today.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]