Alimony (Maintenance): I’ve heard about the Illinois maintenance guidelines. Can the judge vary from them?
For better or worse, in 2015 Illinois adopted maintenance guidelines. Our maintenance guidelines create a presumption. Some have referred to the presumptions as a “starting place.” Yet that is an over-simplification. In any event, Illinois law presumes that that the maintenance guidelines apply when the combined gross income per year is less than $500,000. While these guidelines are a presumption, the court can vary from the guidelines. When the court does vary from the guidelines it considers a series of statutory factors. These factors help determine how much alimony will be paid and how long the payments will last. The Illinois maintenance guidelines changed several times including in 2019. It is critical that your lawyer fully understand the implications of the 2019 amendments.
I’ve also heard about the maintenance as a deduction being lost? Explain that a bit more?
Effective with divorce cases entered on or after January 1, 2019, maintenance is no longer be deductible. For judgments entered before then, maintenance remains a deduction. The Illinois maintenance guidelines also changed in 2019. This is because the percentages of maintenance divorces since 2019 had to change due to the changes in the tax law.
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 is the one this author introduced into the 2018 maintenance guidelines amendments–indefinite maintenance. Using the terms permanent or indefinite maintenance simply means there is no set time for the maintenance to end. I proposed the term “indefinite” maintenance because it better describes Illinois’ law. Unless maintenance is explicitly agreed to be non-modifiable within the marital settlement agreement, it can be modified based on a substantial change in circumstances.
When does indefinite maintenance?
Unless the parties otherwise agree, indefinite maintenance ends when:
- Either spouse dies;
- The spouse receiving maintenance remarries;
- The spouse receiving maintenance cohabits on a “resident, continuing conjugal basis.”
It otherwise ends after the court order considering two sets of statutory factors.
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?
Of course. The Illinois’ maintenance statute (as all of the other lawyers in Illinois) 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?
The factors in Illinois 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 are the most important factors in determining whether a spouse qualifies for maintenance?
Our statute emphasizes two factors: the length of the marriage and the disparity of the parties’ incomes. Illinois law has a formula for determining the amount of maintenance, once it is determined one is entitled to alimony. The presumptive guidelines apply only if the court finds that a maintenance award is appropriate. Also, there are two situations where the Illinois guidelines do not apply:
- The combined gross income is less than $500,000;
- If the obligor must pay child support or maintenance due to a prior relationship.
How much maintenance will be awarded?
Despite the language of the guidelines, the marital lifestyle is the cornerstone (especially in long term marriages) in determining the amount of maintenance. 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 test], then presumptively the maintenance guidelines should normally be followed. Under the current guidelines, the “starting-place” formula is:
- Determine each parties net annual income;
- Take 33.3% of the payer’s net income and subtract 25% of the recipient’s net income.
After calculating this amount, add the net income of the recipient. The guidelines provide for a cap where no maintenance is presumed to be paid if the resulting figure is more than 40% of the combined net incomes of the parties. Your lawyer’s software program will run scenarios that address this 40% cap to show you the effect of various awards.
Does child support interplay?
Yes. 2019 amendments to Illinois’ law provide: “If the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline maintenance…, non-guideline child support…, or both.”
What does this mean?
Illinois law has a 50% soft cap in allowing the court not to follow the presumptive guidelines. This occurs if the combined obligation for alimony and child support is greater than half the payor’s net income.
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, the length is presumed to be:
Maintenance Guidelines Length of Presumed Maintenance Obligation |
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Years 1-7 |
Years 8-14 |
Years 15-20 |
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| Mrg Yrs | Years Mn | Mrg Yrs | Years Mn | Mrg Yrs | Years Mn | ||
| 1 | 0.2 | 8 | 2.9 | 15 | 9.6 | ||
| 2 | 0.4 | 9 | 3.6 | 16 | 10.9 | ||
| 3 | 0.6 | 10 | 4.4 | 17 | 12.2 | ||
| 4 | 0.8 | 11 | 5.3 | 19 | 14.1 | ||
| 5 | 1.2 | 12 | 6.2 | 19 | 15.2 | ||
| 6 | 1.7 | 13 | 7.3 | 20 | 20 | ||
| 7 | 2.2 | 14 | 8.4 | ||||
What does this chart tell you?
For the first five years of a marriage, presumptive awards are short-term. Under this chart, as the length of the marriage is longer, the presumed duration becomes relatively longer and longer. Thus, one can readily compare the results stemming from a 10-year marriage with a presumed length of 4.4 years of maintenance payments versus a 20-year marriage.
What happens if a spouse waives maintenance at the time of the divorce?
If a spouse agrees at the time the divorce is finalized to waive maintenance, the 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?
It depends on whether the divorce was entered in 2019 or later. For current divorces, no longer does the payor get a tax break on the payment of alimony.
Can maintenance be modified (changed)?
Yes. Maintenance is modifiable with limited exceptions. Unless the settlement agreement clearly states that the maintenance agreement cannot be modified, it remains modifiable on a substantial change in circumstances. Yet assessing whether there has been a substantial change in circumstances has spawned numerous appellate court cases and a 2022 proposed statutory change to our law. If one establishes a substantial change in circumstances, the court then has the ability to potentially modify the underlying maintenance awards. If so, maintenance award can normally 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].
See the Gitlin Law Firm’s Q&A regarding modification of your divorce judgment.
