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 nature of presumptions as a “starting place.” Yet that is an over-simplification. In any event, the Illinois alimony guidelines are presumed to apply when the combined gross income per year is less than $500,000. While these guidelines are a presumption, Illinois law regarding maintenance still considers factors such as how long you were married, the differences in income, the ages of the parties, and a variety of other factors. These help determine how much alimony will be paid and how long the payments will last. The Illinois maintenance guidelines changed significantly 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 will still be a deduction. Illinois law regarding maintenance changed once again in 2019. This is because the percentages of maintenance in new divorces had to change because of 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 and one that this author introduced into the 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 had 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.
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.”
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 is gender-neutral. Although in most cases the spouse awarded maintenance is the wife, husbands (in growing numbers) have been awarded maintenance. And with the maintenance guidelines we are seeing more husband’s being awarded maintenance where the income disparity is sufficient.
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?
Generally, the length of the marriage. 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, the guidelines presumptively apply only so long as the combined gross income is less than $500,000 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. Under the current guidelines, the “starting place” formula is:
- Take 33.3% of the payer’s net income and subtract 25% of the recipient’s net income.
- But the amount calculated when added to the gross income of the recipient cannot be more than 40% of the combined net incomes of the parties.
How does child support interplay?
The January 1, 2019 law provides: “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?
This is a 50% soft cap in allowing the court not to follow the presumptive guidelines: that is 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|
|Years 1-7||Years 8-14||Years 15-20|
|Mrg Yrs||Years Mn||Mrg Yrs||Years Mn||Mrg Yrs||Years Mn|
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?
It depends on whether the divorce was entered on or after January 1, 2019. For current divorces, no longer does the payor get a tax break on the payment of alimony.
Can maintenance be modified (changed)?
Yes. 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 modifiable on a substantial change in circumstances. See the Gitlin Law Firm’s Q&A regarding modification of maintenance.