Maintenance
Maintenance, formerly known as “alimony”, is financial support provided by one party to another after a marriage. Not every party will be entitled to receive maintenance and certain factors must be considered to determine if maintenance is appropriate. 750 ILCS 5/504 provides factors that will be taken into consideration to determine if a party is eligible to receive maintenance; the income each party (including marital and non-marital assets), the needs of each party, the present and future earning capacity of each party, the standard of living established during the marriage, the length of the marriage, the age and health of the parties, and any impairment to earning capacity as a result of one party engaging in domestic duties. Once it is determined in accordance with the factors that maintenance should be awarded to one party, the next question is how much maintenance is appropriate.
Guideline maintenance will depend on the income of each party. 750 ILCS 5/504 provides a specific formula to calculate the amount of maintenance, which will take 33.3% of the payor’s net income and subtract 25% of the payee’s net income. However, the total amount of maintenance cannot exceed 40% of the parties’ combined net income. This formula will provide the guideline maintenance amount that would be awarded to one party.
There is also the question of duration of maintenance and how long the obligation to pay maintenance to a former spouse will continue. The duration of maintenance depends on the length of the marriage. Maintenance is calculated by multiplying the length of the marriage at the time the divorce action was commenced and 750 ILCS 50/504 sets forth another formula in determining the length of maintenance depending on the length of the marriage. If you have been married for 20 years or more, the court orders maintenance for a period equal to the length of the marriage or for an indefinite term. Our firm is more than happy to explain the breakdown of these calculations and how it would impact your case.
As of January 1, 2019, the state of Illinois requires that the court must state whether maintenance awarded is fixed-term, indefinite, or reviewable.
Fixed-term maintenance: This is the most common award of maintenance. Maintenance payments are designated for a period of time. At the end of that time, maintenance payments would stop and there would be no future award of maintenance. For example, if the duration of maintenance is determined to be two years, after the two year time period, maintenance payments would cease and future maintenance would be barred.
Indefinite maintenance: With indefinite maintenance, there would not be a specific date of termination. This would be most commonly due to a lengthy marriage.
Reviewable Maintenance: The court may order that maintenance is reviewable after a specific amount of time. For example, if one spouse is in school, maintenance may be awarded until the spouse graduates, and then is reviewable at that time. The purpose would be to allow the spouse maintenance until they are in a position to support themselves. At that time, maintenance could be modified or terminated.
It is important to note that under 750 ILCS 5/504, maintenance is always modifiable if there is a substantial change in circumstances. For example, if one party receives maintenance and obtains new employment that provides them with a substantial income increase, the other party may request that there be a modification of maintenance. The parties current income would then be utilized to determine if there should be a change to the maintenance. Similarly, if the party ordered to pay maintenance receives a pay cut or is laid off, maintenance could be reviewed. However, a party who voluntarily elects to take a lower paying position may have their income imputed to what their earning potential is.
Additionally, there are terminating events set forth of 750 ILCS 5/504 which will automatically result in the termination of maintenance. These events include (1) the cohabitation of the recipient; (2) remarriage of the recipient; (3) death of either the payor or recipient. Cohabitation requires the maintenance recipient to be living with another person on a “resident, continuing conjugal basis” and is heavily dependent on the facts of each case. Cohabitation and events that terminate maintenance are further discussed in our article here.
The Law Office of Erin M. Wilson has represented various clients with different financial circumstances and is well equipped to advise you regarding maintenance and how it relates to your divorce case. Contact The Law Office of Erin M. Wilson LLC to schedule a consultation at 312-767-4220.
NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.