What You Need to Know
In Illinois, alimony has been replaced with the term maintenance. However, the concept remains the same: maintenance is financial support that one spouse is typically court-ordered to pay another upon the dissolution of the parties’ marriage. Maintenance is intended to ensure that both parties to a divorce can financially support themselves, specifically focusing on the lower-earning spouse who may be subject to financial instability following a dissolution of his or her marriage.
There are different types of maintenance in Illinois. Courts must treat each case individually in determining first whether maintenance is appropriate and subsequently deciding which type of maintenance is proper based on the circumstances of the parties. Maintenance can be indefinite, modifiable due to a substantial change in circumstances, or terminated at a date certain or upon the occurrence of a terminable event. Understanding how courts evaluate the parties’ circumstances when calculating maintenance is essential to both parties in an Illinois dissolution, as both the recipient and the payor of maintenance have a financial stake in a judge’s ultimate determination of a maintenance award.
Eligibility for Maintenance in Illinois.
Prior to deciding which type of maintenance is most appropriate in any given case, a judge must first determine that maintenance is appropriate in that case. In other words, there are times when a dissolution of marriage is filed in Illinois and a court may find that neither party is entitled to maintenance from the other.
Section 504 of the Illinois Marriage and Dissolution of Marriage Act provides a non-exhaustive list of factors that courts are to consider when deciding whether to award maintenance. This list includes, but is not limited to: the income and property of the parties, the needs of each party, the present and future earning capacity of each party including the impairment of earning capacity due to a parties’ performance of domestic duties or foregoing of education or employment for the benefit of the marriage, the standard of living established during the marriage, the duration of the marriage, the age and health of the parties, and any valid agreement between the parties such as a prenuptial agreement. Refer to Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act for a full list of factors considered, keeping in mind the court can consider any other factors not listed that it finds to be equitable and just.
Guideline vs. Non-Guideline Maintenance.
Once a court finds that a maintenance award is appropriate, it must decide whether the amount of maintenance should be set pursuant to Illinois statutory guidelines or if there should be a deviation from the guideline amount. If the parties earn a combined gross annual income of less than $500,000.00 and the payor has no maintenance and/or child support obligation from a prior relationship, guideline maintenance is deemed appropriate unless the court makes specific findings that support a deviation from the guideline award and duration provided by Illinois statute.
When guideline maintenance is awarded, Illinois statute provides a formula to calculate the award. The calculation formula provides that maintenance should equal 33.3% of the payor’s net annual income, less 25% of the recipient’s net annual income. There is also a statutory cap on maintenance, meaning when guideline maintenance is awarded, the recipient cannot receive maintenance that exceeds 40% of the parties’ total combined net income.
When a court deems it appropriate, it may deviate from the guideline amount of maintenance and award a higher or lower amount of maintenance. In these instances, the court must state what the guideline award would have been and its reasoning for varying from the guidelines.
The duration of maintenance is based on the length of the parties’ marriage up until a dissolution action is commenced. The formula establishes different multipliers to be used based on the number of years the parties were married. For example, a marriage of less than five years is multiplied by 0.2 to determine the maintenance duration, so a 4-year marriage would result in approximately 9.6 months of maintenance. The multipliers increase as the years of marriage increase. Section 504(b-1)(1)(B) of the Illinois Marriage and Dissolution of Marriage Act provides the specific multipliers used to determine duration of maintenance in accordance with the statutory guidelines.
In all cases where maintenance is at issue, the court must make specific findings and state its reasoning for awarding or not awarding maintenance, its reasoning for deviating from the guideline amount if it chooses to do so, and shall state whether maintenance is fixed-term, indefinite, or reviewable.
Types of Maintenance.
Section 504(b-4) of the Illinois Marriage and Dissolution of Marriage Act sets forth three main types of maintenance awards.
The first is fixed-term maintenance, which sets a specific date that maintenance will terminate. This is typically established using the statutory formula described above. Once the termination date is reached, maintenance is barred. However, if a payor falls behind on maintenance payments, past-due amounts still owing remain in effect even when the regular maintenance obligation terminates.
Indefinite maintenance is also known as permanent maintenance. This is most commonly awarded when a marriage has lasted 20 years or more, or at times if one spouse is permanently disabled and in need of ongoing support. It is essential to reiterate that every maintenance award is analyzed on a case-by-case basis. When indefinite maintenance is awarded, there is no set termination date by the court. Instead, maintenance payments continue until modification or termination occurs, as addressed in detail under the “Modification and Termination” Section of this article.
Reviewable maintenance is similar to fixed-term maintenance. However, rather than providing a date that maintenance will terminate, the court designates a specific term of maintenance and specifies that maintenance is reviewable at the end of the term. Upon review of the maintenance award, the court may extend the maintenance to a later review date, extend maintenance for a fixed, non-modifiable period of time, extend maintenance indefinitely, or permanently terminate maintenance.
Other types of maintenance in Illinois include temporary maintenance, which is maintenance a spouse is awarded while a divorce case is pending. Temporary maintenance is eventually superseded by a permanent maintenance award when a final divorce judgment is entered. The party paying temporary maintenance may be entitled to a credit for the months or years that temporary maintenance was paid when the final judgment is entered. In certain circumstances, judges may award what is known as rehabilitative maintenance. Rehabilitative maintenance is a temporary maintenance award with a specific termination period or termination event. It allows a spouse time to obtain training, education, or employment to become self-supporting.
Modification and Termination of Maintenance.
Maintenance awards can be modified or terminated only upon a showing of a substantial change in circumstances. Section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act governs the modification of maintenance awards in Illinois. Parties seeking to modify maintenance should keep in mind that maintenance can only be modified retroactively to the date a Petition for Modification is filed, meaning that the date the substantial change occurred is irrelevant if a party fails to timely file a Petition seeking the modification. A party should not unilaterally modify his or her maintenance payments prior to a court ordering so, or they risk being held in contempt of court.
When determining whether to modify or terminate a maintenance award based on a substantial change in circumstances, courts consider the same factors provided when determining whether to initially award maintenance. The court considers additional factors including changes in employment status and whether the change has been made in good faith, any efforts of the maintenance recipient to become self-supporting, the duration of the maintenance payments previously paid, the increase or decrease in each party’s income since the prior judgment, and property acquired and currently owned by each party after the entry of the final judgment.
It should be noted that not all changes in circumstances are substantial. Courts are given deference in determining whether a change in either parties’ financial or other circumstances are substantial enough to warrant a modification. Further, the substantial change in circumstances cannot be a change that was contemplated when the initial maintenance award was established. For example, if a party knew at the time of the original judgment that their employment hours would be reduced in six months or that they were currently transitioning out of a specific role leading to reduced income in the future, there would be an argument that a future modification based on those circumstances would be inappropriate because the change was contemplated at the time of the original judgment.
Even if a substantial change in circumstances occurs, courts will not always grant a modification. This can occur when a party seeks modification of maintenance due to a decrease in income or employment that the court does not consider having been made in good faith. Voluntarily reducing work hours or becoming unemployed due to intentional conduct leading to a discharge of duties may be seen as a bad faith change in employment or income. This may also be true when a party chooses to change career tracks which results in significantly less income. It is within a court’s discretion to determine whether a change occurs due to good faith actions. At times, if a court finds a bad faith change in employment or income occurs, it may impute income to a party. A court that imputes income assigns income to a party even though they are not earning that amount. This occurs most often when a party quits a job without a good-faith reason, fails to make reasonable efforts to become employable or find employment, or reduces their income or hours voluntarily.
As previously discussed, maintenance can terminate automatically at the end of a fixed term provided by a court. There are other instances which automatically provide for maintenance to terminate, even before the fixed-term date is reached, and even if maintenance is indefinite. Maintenance is automatically terminable upon the death of either party, the remarriage of the party receiving maintenance, or if the party receiving maintenance begins cohabiting with another person on a resident, continuing, conjugal basis. When the party receiving maintenance remarries or begins cohabiting with another person, maintenance terminates by operation of law. This means that in contrast to retroactive modification of maintenance, a payor is entitled to reimbursement for maintenance paid from the date of the recipient’s remarriage or the date a court determines cohabitation began, even if it pre-dates the filing of a Petition to Terminate Maintenance. Whether a party is cohabiting with another on a resident, continuing, conjugal basis depends on the specific facts presented to the court. There is a non-exhaustive list of factors the court considers when analyzing cohabitation claims, but each set of facts is different, and the issue is determined on a case-by-case basis.
Additional Considerations.
In addition to the aforementioned items relating to spousal maintenance in Illinois, there are further issues a party should consider. First, specific documentation is often required when asking a court to award or modify maintenance. Parties should always anticipate providing documents to support their incomes, expenses, job histories, etc. As previously described, while a plethora of factors are contemplated, the income of each party is the primary factor used when setting a maintenance award. This often requires parties to produce tax returns, paystubs, W-2 statements, 1040 statements, bank statements, and more. When considering whether to deviate from statutory guidelines or modify a prior maintenance award, courts may request diaries of employment opportunities sought, a detailed income history, documents pertaining to termination from an employer, and the like. A party anticipating spousal maintenance becoming an issue should begin gathering relevant documentation as early as reasonably possible.
Another issue arises when a maintenance payor falls behind on maintenance payments. Maintenance obligations that become due and remain unpaid do not terminate or change upon occurrence of a termination event or modification of support. In addition, pursuant to Section 505 of the Illinois Marriage and Dissolution of Marriage Act, unpaid maintenance accrues simple interest from the date it becomes due up until the obligation is paid. Overdue maintenance is treated the same as any other enforceable judgment in Illinois, potentially creating a lien on a payor’s real or personal property by operation of law for each installment of overdue support. Parties seeking to enforce a maintenance obligation should contact an Illinois family law attorney regarding their options to collect on past due spousal support.
Understanding Illinois maintenance laws is essential to ensuring each party has full knowledge of his or her rights in a dissolution of marriage. Whether you are entitled to receive maintenance or obligated to pay it, it is important to understand the factors courts consider when deciding whether to award maintenance, the amount and duration of a maintenance award, and whether to modify or terminate maintenance. Because every case is unique, parties to a dissolution are highly encouraged to work with an experienced family law attorney to assist you in making informed decisions and ensure that a court is aware of all relevant circumstances that may impact an award of maintenance in your case.
