What is Maintenance in an Illinois Divorce Case?
Maintenance, sometimes referred to as alimony or spousal support, is financial support that one spouse pays to the other in the event of a divorce.
Illinois law states: “The goal of maintenance payments is not to enrich one spouse at the expense of the other. Rather, it is meant to help preserve the standard of living which the parties established during the marriage and to minimize the economic impact of the divorce on the spouse who earns less (or nothing at all) compared to the other spouse.”
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Understanding The Different Types of Maintenance
The Illinois Marriage and Dissolution of Marriage of Act sets out three different types of maintenance: fixed-term, reviewable, and indefinite.
Fixed Term Maintenance
When ordering fixed-term maintenance, the court determines a period of time in which maintenance is appropriate and payments terminate at the end of the set payment period. Upon the termination of the payment period, maintenance is barred. Fixed-term maintenance is appropriate when the receiving/dependent spouse has potential for future employability at an income that allows approximately the same standard of living established during the marriage.
The goal is to provide support for a period of time to allow the dependent spouse to reenter the job market or renew or develop skills so that he or she will become self-sufficient through his or her own income.
Indefinite Term Maintenance
When the court orders indefinite or permanent maintenance, no termination date is set. This type of maintenance is appropriate when the dependent spouse has no realistic employment opportunities or after a long marriage.
When one spouse has spent the majority of the marriage at home raising children and maintaining the home as the primary caretaker or has lost or never developed skills or experience for continued employment during the years that the other spouse was receiving higher education or establishing a career, indefinite maintenance is given careful consideration and often granted.
Similar to fixed-term maintenance, reviewable maintenance is paid for a specified period of time. At the end of that period of time, however, the court has the authority to determine whether the maintenance payments should continue.
The decision to extend or terminate maintenance is based on the parties’ current resources and whether the dependent party has achieved financial independence. The burden to seek a review of maintenance is on the recipient. If the recipient fails to file a request for review with the court by the review date (or another agreed-upon date set forth in the divorce judgment) the review is waived, and maintenance terminates.
How Maintenance Is Structured In Illinois
“Whether a case falls within the guidelines or deviates from guidelines is based on the parties’ combined net annual income.”
Guideline and non-guideline maintenance will be discussed in detail below.
When is Maintenance Awarded?
The decision to award maintenance is made on a case-by-case basis. The key factors in making that determination are the length of the marriage and the incomes of both parties. When maintenance is deemed appropriate and has not been waived, the court, in its discretion, may grant an award of maintenance to either spouse in amounts and for periods of time which the court deems just.
An award of support is not appropriate merely because one spouse feels they are owed something and wants to enrich themselves to the detriment of the other.
What the Courts Look at in Illinois Divorce Cases
To guide the court, the Illinois Marriage and Dissolution of Marriage Act lists 14 factors for the court to consider in cases of both guideline and non-guideline maintenance.
The list of factors includes:
- The income and property of each spouse, including marital and non-marital property and other financial obligations;
- The needs of each spouse;
- The realistic present and future earning capacity of each spouse;
- Any impairment of the present and future earning capacity of the spouse seeking maintenance due to delaying or forgoing education or career opportunities to devote time to domestic duties such as childcare and homemaking;
- Any impairment of the realistic present or future earning capacity of the spouse against whom maintenance is sought;
- The time required by the spouse seeking maintenance to obtain appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;
- The standard of living established during the marriage;
- The length of the marriage;
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each spouse;
- All sources of public and private income including disability and retirement income;
- The tax consequences of property division on each spouse;
- Contributions and services by the spouse seeking maintenance to the education, training career or career potential or license of the other spouse;
- Any valid agreement such as a prenuptial agreement; and
- Any other factor that the court expressly finds to be just and equitable.
How The Court Determines The Amount of Maintenance
While no one factor solely determines the outcome for maintenance awards, the court, in reaching a fair result, may weigh certain factors more heavily than others.
If the court determines that maintenance is appropriate using the factors set out above, the court next determines the amount of maintenance.
Guideline Maintenance Before January 1, 2019
Before January 1, 2019, The Illinois Marriage and Dissolution of Marriage Act divided cases into two categories based on income.
Parties that have a combined gross annual income below $500,000 and parties that have a combined gross annual income above $500,000.
If the combined gross annual income is less than $500,000 and the payor has no obligation to pay maintenance or child support from a prior relationship, the court is required to use guidelines set out in the Act.
Maintenance orders entered before January 1, 2019, continue to be eligible for inclusion in the gross income of the receiving spouse for federal income tax purposes and are deductible by the paying spouse.
Guideline Maintenance After January 1, 2019
The Illinois legislature changed the maintenance guidelines effective January 1, 2019, to adapt to the changing tax effect of maintenance payments. Under the current guidelines, an annual maintenance award is calculated by taking 33 1/3% of the supporting spouse’s net annual income minus 25% of the receiving spouse’s net annual income, as opposed to gross income.
Formula Calculating Guideline Maintenance
Under the pre-2019 guidelines, the amount of maintenance is calculated by taking 30% of the supporting spouse’s annual gross income minus 20% of the receiving spouse’s annual gross income.
For example, say the annual gross income of a couple is $200,000. The supporting spouse earns $170,000, and the receiving spouse earns $30,000. The calculation would be as follows:
30% ($170,000) – 20% ($30,000)
$51,000 – $6,000 = $45,000
There is one caveat to the maintenance formula. The award for maintenance plus the gross income of the dependent spouse cannot be in excess of 40% of the combined annual gross income.
40% ($200,000) = $80,000
$45,000 + $30,000 = $75,000
$75,000 < $80000
The calculated maintenance amount of $45,000 plus the $30,000 net income of the dependent spouse is less than 40% of the combined net income of $200,000. Therefore, the Court would then set guideline maintenance to $45,000.
This formula is now used only for modification of awards ordered prior to January 1, 2019. An award of maintenance can be subject to modification in the event of a substantial change in circumstances.
Using the same numbers as above, say the annual net income of a couple is $200,000. The supporting spouse earns $170,000 of that amount, and the dependent spouse earns the remaining $30,000. The formula would be as follows:
33 1/3 % ($170,000) – 25% ($30,000)
$56,610 – $7,500 = $49,110
The resulting amount of maintenance, when added to the net income of the dependent spouse, cannot result in the dependent spouse receiving an amount that is in excess of 40% of the net income of the parties combined.
40% (200,000) = $80,000
$49,110 + $30,000 = $79,110
$79,110 < $80,000
The calculated maintenance amount of $49,110 plus the $30,000 net income of the supporting spouse is less than 40% of the combined net income of $200,000. Therefore, the judge would order $49,110 in maintenance. If greater than 40% of the combined net income, the judge will reduce the maintenance award to the point where the recipients’ total net income would be no greater than 40% of the parties’ combined net income (in this case $80,000.00).
If the court decides to deviate away from this formula, it must state in its written findings the amount of maintenance that would have been required under the guidelines, in this example $49,110, and the reason for varying away from the guidelines.
Duration of Maintenance Payment Period
The maintenance term (either fixed for a period of time or indefinite) is dependent on the length of the marriage. The statutory guidelines require that maintenance continues for a certain percentage of the length of the marriage.
The longer the marriage, the longer the maintenance period.
For marriages of 20 years or longer, the court has the discretion to order maintenance for a period equal to the length of the marriage or for an indefinite period. The chart below lists the number of years of marriage with the corresponding percentage.
|Length of Marriage||Percentage|
|Less than 5 Years||20%|
|5 years or more but less than 6 years||24%|
|6 years or more but less than 7 years||28%|
|7 years or more but less than 8 years||32%|
|8 years or more but less than 9 years||36%|
|9 years or more but less than 10 years||40%|
|10 years or more but less than 11 years||44%|
|11 years or more but less than 12 years||48%|
|12 years or more but less than 13 years||52%|
|13 years or more but less than 14 years||56%|
|14 years or more but less than 15 years||60%|
|15 years or more but less than 16 years||64%|
|16 years or more but less than 17 years||68%|
|17 years or more but less than 18 years||72%|
|18 years or more but less than 19 years||76%|
|19 years or more but less than 20 years||80%|
For example, if a couple was married for 10.5 years, the calculation would be:
10.5 x 44% = 4.62 years
Just as with the amount guidelines, the court can deviate from the duration guidelines, but in its written findings the court must state how long the guidelines would normally require maintenance and the reason for deviating.
For example, in In re Marriage of Stam, the court ordered the continuation of maintenance for longer than the spouses’ 5-year marriage because the spouse seeking maintenance was unlikely to ever become self-supporting due to her multiple sclerosis.
When the annual net income of a couple is greater than $500,000 the court is not required to follow the statutory guidelines.
The court, in its discretion, will make a determination as to maintenance based on the initial factors that determine whether maintenance is appropriate.
In the majority of cases, the court will still rely on the guidelines to make an initial determination. If the court feels that the outcome of the calculation is appropriate and fair, that maintenance amount will be ordered.
If the court feels that it is not appropriate and fair, the court can and will make changes to the award amount as they see fit taking the factors outlined in the law into account.
Modification of Maintenance
Courts have the discretion to modify an existing maintenance order when there is a substantial change in circumstances. A substantial change in circumstances means that either the needs of the receiving spouse or the ability of the supporting spouse to pay maintenance changed. A substantial change in circumstances could result from a change in employment, a change in income, or a change in the health of either party.
Whether or not something constitutes a substantial change in circumstances is the biggest hurdle blocking a modification award. Once the hurdle has been overcome, the court will consider how to modify maintenance. The Illinois Marriage and Dissolution of Marriage Act requires the court, when modifying, to consider the fourteen factors used to determine whether maintenance is appropriate and the following nine factors:
Additional Factors For Modification of Maintenance Include:
- Any good-faith changes in employment status of either party – the paying spouse cannot just quit his or her job in an attempt to reduce maintenance;
- Efforts made by the receiving spouse to become self-supporting. The recipient spouse is required to make reasonable efforts to become self-supporting, and if the paying spouse can prove the recipient is not doing so, maintenance may be reduced;
- Impairment of the present and future earning capacity of either party;
- The tax consequences of the maintenance payments upon the economic circumstances of each party;
- The duration of the maintenance payments previously (and remaining to be) paid relative to the length of the marriage;
- The property awarded to each party in the divorce judgment, and the present status of the property. The award of property in a divorce to the recipient spouse may be used to reduce the amount of maintenance received;
- The increase or decrease in each party’s income since the prior judgment or order;
- The property acquired and currently owned by each party after the divorce;
- Any other factor that the court expressly finds to be just and equitable.
Statutory Maintenance Termination Events
The obligation to pay maintenance terminates automatically in three different circumstances.
- The cohabitation of the recipient.
- Remarriage of the recipient.
- Death of either the payor or recipient.
Cohabitation requires the maintenance recipient to be living with another person on a “resident, continuing conjugal basis.” Unfortunately for payors, courts have very generously interpreted this in favor of recipients, requiring a near-marriage-like situation before terminating maintenance.
If the receiving party plans to remarry, he or she must inform the paying spouse of the decision 30 days before the remarriage to allow him or her time to file a motion to terminate maintenance with the court.
Upon the death of either party, the obligation to pay maintenance terminates. There is no obligation for the estate of the supporting spouse to continue to pay.
The obligation to pay terminates on the date cohabitation begins, the date of remarriage, or the date of death, and the supporting spouse (or their estate) is entitled to reimbursement for all payments made from the date of remarriage, cohabitation, or death. The automatic termination of maintenance in these three scenarios can be modified with a written agreement.
In certain cases, the court will impute or assign income to one or both of the parties. If a person is earning no income but could earn an income or is purposefully earning less income, the court might determine an income amount for that person to use when computing maintenance.
Imputed income for the purpose of maintenance calculations is appropriate only when the court finds that the supporting spouse is voluntarily unemployed, attempting to avoid a higher support obligation, or has unreasonably failed to take advantage of employment opportunities.
When calculating the amount of income to impute, the court may consider the supporting spouse’s income from previous employment, but if the information is outdated or no longer reflective of income prospects, it should not be used. The court can also impute income onto the recipient spouse.
For example, in a long-term marriage, the court may assign minimum wage to a potential recipient if that person has been out of the workforce for a long time and does not have paid full-time employment.
In another example, the court might impute income to a formerly high-wage earner if that person voluntarily quits their high-paying job and earns much less income.
The court in In re Marriage of Lichtenauer, did this when the husband voluntarily left his corporate position in order to work as a lower-paid employee in an attempt to understate his income. Once the income is imputed, maintenance will be calculated using that income.
Life Insurance may be used to Secure Payment of Maintenance
In general, maintenance obligations are terminated upon the death of either party. However, an untimely death could leave the dependent spouse in a tough financial situation. To prevent this, the court may recommend that the maintenance be secured with a life insurance policy.
While it is within the discretion of the court, it is almost always recommended by the judge and is a common feature in divorce judgments and settlement agreements. If a life insurance policy already exists, the court may order that a portion of the death benefits is assigned to the dependent party and that the dependent party pays a portion of the premium.
If a new life insurance policy is needed, the court may order that two spouses cooperate in obtaining the new policy on the supporting spouse’s life, and the dependent party would own the policy and be responsible for the payments. The death benefits available may be limited as the court sees reasonable based on the ordered maintenance.
Maintenance and Taxation
Similar to child support, maintenance awarded on or after January 1, 2019, is not deductible for the payor and not taxable to the recipient.
Payors of maintenance based on awards before January 1, 2019, may deduct their maintenance payments from gross income for income tax purposes, and recipients must claim the maintenance payments as additional gross income.
The taxability and deductibility of maintenance payments can be modified if stated in the applicable judgment or court order.
Waiver of Maintenance
In some cases, a potential recipient may waive maintenance. If that happens, the waiver is binding forever. The waiving party cannot seek maintenance (even for very good reasons) at any point in the future.
For example, the wife in In re Marriage of Berger sought the invalidation of the waiver provision in a signed prenuptial agreement believing the vast difference between the net worth of the two parties made it unfair, but the court found that the agreement was still valid and binding on the parties.
Parties may waive maintenance as part of a marital settlement agreement – for example, one party might give more assets to the other to secure a “buy-out” of maintenance. The recipient party would then waive any claim to maintenance.
The maintenance payor typically waives any claims to maintenance (as the trial court would almost certainly deny a maintenance claim from the party with higher income in any event).
Reservation of Maintenance
Parties may opt to reserve the decision of maintenance. This means the issue is not decided and can be determined at some point in the future.
This may be appropriate in cases where an unforeseen but temporary event affects the income of one or both parties such that awarding maintenance at the time the case is resolved may not be in the interest of either party. In that case, the terms of the judgment control insofar as how long a reservation lasts (they can be time-limited) and what other terms govern reservation.
Maintenance is impacted by a multitude of different factors and therefore the results may vary in each case.
This should provide you an overview of the mechanics of the maintenance determination process in Illinois.
However, it is important to seek professional advice when dealing with a maintenance issue during a divorce to ensure that everything is done properly.