Alimony (Maintenance): Who, Why, How Much, How Long?
For better or worse, in 2015 Illinois adopted maintenance guidelines that are presumed to apply currently when the combined gross income per year is less than $250,000 [and note that this amount may go up to $500,00]. While these guidelines are a presumption, Illinois law regarding maintenance still considers factors such as how long you were married, the differences in income and assets, the ages of the husband and wife and a variety of other factors to determine how much alimony or maintenance will be paid and how long alimony payments will last. Although every case is unique, the length of the marriage and the differences in incomes are factors given great weight. In 2015, Illinois enacted maintenance guidelines and it is critical to understand and anticipate that these guidelines may change, effective January 1, 2018. In any event, the Illinois maintenance guidelines provide what some call a “starting place” for maintenance awards in Illinois if certain conditions are met.
What is maintenance?
Maintenance (alimony) is court ordered financial support that one spouse pays to the other in the event of a divorce.
What is permanent maintenance?
The better term and one that this author introduced into the prospective potential 2018 maintenance guidelines amendments is “indefinite maintenance.” Using the term “permanent maintenance” or “indefinite maintenance” simply means there is no set time for the maintenance to end. I have preferred the term “indefinite” maintenance because it better describes it. Unless the parties otherwise agree, indefinite maintenance will end when either spouse dies, the spouse receiving maintenance remarries, or the spouse receiving maintenance cohabits on a resident, continuing conjugal basis. Unless maintenance is explicitly termed as non-modifiable within the underlying divorce documents, maintenance can be modified based on a substantial change in circumstances.
Are all spouses entitled to maintenance?
No. A maintenance award is based on the needs of one spouse and the ability of the other spouse to pay.
Can husbands be awarded maintenance?
Yes. The law is clear. The Illinois’ maintenance statute is gender-neutral. Although in most cases the spouse awarded maintenance is the wife, husbands (in growing numbers) have been awarded maintenance.
What factors does the court consider in determining whether a spouse qualifies for maintenance?
Specific factors include the duration of the marriage, the income and property of each party, age, physical and emotional problems and the standard of living established during the marriage.
What is the most important factor in determining whether a spouse qualifies for maintenance?
The duration of the marriage. This is perhaps the most significant one. Commencing in 2015 Illinois law has a formula for determining entitlement to maintenance so long as the combined gross income is less than $250,000 and the payor has “no obligation to pay child support or maintenance or both from a prior relationship.”
How much maintenance will be awarded?
Despite the language of the guidelines, the economic lifestyle of the parties should be the cornerstone (especially in long term marriages) in determining the amount of maintenance awarded. The maintenance guidelines provide that if the court determines that maintenance is appropriate (and the other two factors do not apply — the combined gross income test and the prior relationship text — then presumptively the maintenance guidelines should be followed.
- Take 30% of the payer’s gross income minus 20% of the payee’s gross income.
- But the amount calculated when added to the gross income of the recipient cannot be more than 40% of the combined gross income of the parties.
How long does maintenance continue?
In cases where maintenance is awarded, there are presumptive amounts for the maintenance awards if the above two tests to not apply. The issue is the length of the marriage at the time the case is commenced. Under Illinois law through to January 1, 2018 the length if the court follows the guidelines is based on simply multiplying the numbers of years married by the following:
- 5 years or less: 20%
- More than 5 years but less than 10 years: 40%
- 10 years or more but less than 15 years: 60%
- 15 years or more but less than 20 years: 80%
- For a marriage of 20 years or more, the court in its discretion, would presumptively order either permanent [read indefinite] maintenance or maintenance for a period equal to the length of the marriage.
Again, assuming that these maintenance guidelines apply, what would be the length under the current law and the legislation that you discussed?
The following chart compares the results under the current law and HB 2537 — if it is signed into law regarding the presumed length of maintenance [and again please understand that this should only be a “starting place” in your divorce but per many divorce lawyers is an “ending place.”]
|Maintenance Guidelines: Length Current Law and Potential Prospective Law|
|Years 1-7||Years 8-14||Years 15-20|
|Mrg Yrs||Years Mn||New||Mrg Yrs||Years Mn||New||Mrg Yrs||Years Mn||New|
What happens if a spouse waives maintenance at the time they are divorced?
If a spouse agrees at the time the divorce is finalized to waive maintenance, that waiver is forever binding. The spouse waiving maintenance cannot later come back into court and be awarded maintenance.
What are the income tax consequences of maintenance?
Payment of maintenance is deductible by the party paying it and reportable by the party receiving it.
Can maintenance be modified (changed)?
The issue is whether there is a substantial change in circumstances. If so, maintenance award can be adjusted up or down, or totally terminated. In cases of termination of maintenance the issues include whether there is “resident, continuing conjugal cohabitation” [See the Gitlin Law Firm’s articles in this regard]. Thus, unless the marital settlement agreement clearly states that the maintenance agreement cannot be modified, it is always modifiable on a substantial change in circumstances. See the Gitlin Law Firm’s Q&A regarding modification of maintenance.