Alimony (Maintenance): Who, Why, How Much, How Long?
Divorce courts in Illinois will consider 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 income are factors given great weight. And in 2015, Illinois enacted maintenance guidelines. These 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?
Permanent maintenance means there is no set time for the maintenance to end. A better word for this is actually “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 is subject to modification due to 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 Illinois maintenance statute is gender- neutral. Although in most cases the spouse awarded maintenance is the wife, husbands have also 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. While there are many factors, the duration of the marriage is the most significant one. And commencing January 1, 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.” This later language is from the law as it changed January 1, 2016.
How much maintenance will be awarded?
Appellate court cases and the maintenance statute speak of the economic lifestyle of the parties as being a very significant factor 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 as of January 1, 2016 will be the length of the marriage at the time the case was commenced.
- 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.
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?
The payment of maintenance is deductible by the party paying it and reportable by the party receiving it.
Can maintenance be modified (changed)?
Yes. A maintenance award can be adjusted up or down, or totally terminated upon a showing of a substantial change of circumstances, that is, a greater or lesser need for maintenance plus the ability of the paying spouse to pay or termination if there is no future need for maintenance. The exception is if the marital settlement agreement stated the maintenance agreement cannot be modified.