While you don’t want to think of marriage as a business transaction, it is a partnership. and, like any partnership, people grow, interests change and the future envisioned by the parties drifts.
The goal of divorce, in this instance, is to allow everyone to move on without facing substantial financial hardship after the dissolution of this partnership–if at all possible. That’s why courts in Illinois consider the past circumstances, the present conditions, and future possibilities for the parties getting divorced when considering an award of maintenance.
Understanding the criteria used to make this determination is crucial. Courts review multiple somewhat subjective criteria to determine if maintenance is needed, and in some cases, to set the amount and type of maintenance.
The following breaks down these 14 criteria used in Illinois.
Criteria for Divorce Maintenance in Illinois
While the court’s initial determination of divorce maintenance (a.k.a. alimony) is flexible, once awarded, it is more difficult to modify. The type, length, and amount of maintenance are derived from a dedicated formula and aren’t easy to adjust.
Therefore, getting it right the first time is very important. This is one reason that divorce service attorneys work to present all of the relevant and pertinent information before an initial ruling is made – or before a pretrial conference where the court may give a settlement recommendation on maintenance length and amount.
1. Income and Property
In calculating the income for maintenance purposes, all sources of income are included, including income from investments, interest, and more. Net income is used for this calculation, so expenses and taxes are netted against gross income. For example, if you have income from a rental property, the expenses and taxes for the property are deducted from gross revenue to determine net income for support purposes.
The needs of each party – this is to some extent based on the status quo, and the lifestyle reached during the marriage. However, this factor is typically overemphasized in people’s minds, and courts put less emphasis on lifestyle than most people think. Existing expenses are taken into account here. However, the court is aware that people can change and control their expenses, and these frequently change – sometimes substantially – after divorce.
3. Present and Future Earning Capacity
A judge looks at the reasonable earning capacity of both parties. This includes the current capability and future earnings considering job markets and the existing and potential education of both parties. For example, a stay-at-home parent with a CPA can be expected to earn substantially more than minimum wage, though it may take time to reenter the workforce.
4. Impairment in Earning Capacity for Recipient
With this factor, the court takes into account any hindrance to the earning capacity of the support recipient due to staying at home with kids, missed or delayed educational opportunities, and the like.
5. Impairment of Earning Capacity for Payor
The court considers any issues that impact the ability of the proposed support payor to earn an income.
6. Time For Maintenance Recipient to Obtain Education/Training
This factor relates to the time required for the proposed alimony recipient to get the education and training, if any, and to obtain employment, and whether the person will be able to support themselves in general through appropriate employment.
7. Impact of Parenting Time
The impact of parenting responsibilities on the ability to generate income for either party and the effect it may have on seeking and maintaining employment.
8. Living Standard
The standard of living reached during the marriage. This can be a hotly debated issue, especially when parties were realistically living beyond their means.
9. Duration of Marriage
The length of maintenance correlates with the length of the parties’ marriage. This is measured from the date of the wedding to the date the divorce case was initially filed.
10. Status of the Parties
Age, health, current employment, amount and sources of income, job skills, employability, the extent of any estate (inheritance), existence and extent of debts, and the needs of each party.
11. Income Sources
All sources of income including disability, retirement, pensions, and Social Security.
A divorce court takes into consideration the tax consequences to each party by payment and receipt of maintenance (this has a lesser impact now since the deduction for payment of maintenance was eliminated, and maintenance payments are tax-free to the recipient).
13. Education and Career Contributions
This factor takes into account any effort each spouse puts into helping the other build their ability to earn an income. This factor includes the contributions each party made to help the other gain education, work opportunities, training, or licensure.
14. Valid Agreements
This covers both prenups and postnups that override other considerations, assuming they are valid.
15. Other Factors (Applicable)
Even an exhaustive list isn’t all-encompassing. This catch-all category serves to allow mitigating circumstances and arguments. However, there is a reasonableness standard in play.
Seek Assistance With Maintenance Questions
Understanding the details of divorce maintenance in Illinois is complicated but grasping the broad factors considered by the court helps you grasp the elements at work in a maintenance determination. It’s easy to get overwhelmed by the details and the huge number of elements involved in a maintenance determination, as well as the subjective case-by-case nature of maintenance decisions. Contact us for professional and personal advice in handling your situation.