Divorce courts have wide discretion in determining whether maintenance awards will be awarded in divorce cases, the amount of the award, and how the award will be paid. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) lists several factors that courts are instructed to consider in making maintenance determination. The factors are explained below.
Divorce courts review the "net income" of each spouse. In order to arrive at the "net income" figure the court will first calculate "gross income." Gross income includes most types of income, such as wages, disability benefits, workers compensation benefits, insurance proceeds, vacation pay, severance pay, interest, gifts, Social Security benefits, and portions of interest or appreciation from retirement account distributions.
The divorce court will assess the needs of both spouses, including the spouse from whom maintenance is sought. The judge will determine whether, on the one hand, the spouse seeking maintenance has a need for maintenance payments; and, on the other hand, whether the spouse from whom maintenance is sought is actually able to pay maintenance. The goal is to create relatively equal standards of living for each spouse, as close as possible to the standard of living enjoyed during the marriage.
The family law judge will seek to use maintenance as a tool to ensure that each spouse "financially independent." Financial independence does not mean mere subsistence, but is based instead on the standard of living during the marriage. Courts are more likely to award permanent maintenance if one spouse is unemployeable or if the party's prospective employment will not allow him or her to continue the standard of living he or she enjoyed during the marriage. If the spouse seeking maintenance is employable, he or she is required to attempt to find employment, rather than simply live off of the maintenance award.
If one spouse sacrificed career or education advancement in order to perform domestic duties during the marriage, a long-term maintenance award is likely. If the spouse seeking maintenance is the custodial parent, the divorce court will also consider future sacrifices that he or she will be expected to make in order to raise the children of the marriage.
The judge will asseses the length oftake the spouse to obtain education in order to put himself or herself in the position he or she would have been in had she not made such sacrifices. If the spouse can become self-sufficient after training, then the court may award rehabilitative maintenance for a specific time period.
The goal of the divorce court is to provide both spouses with an equal standard of living as close as possible to that enjoyed during the marriage. The court will review both (1) the standard of living during the marriage; and (2) the other spouse's ability to afford payments. The court will not necessarily provide for the spouse seeking maintenance to maintain his or her standard of living permanently. Temporary maintenance may be awarded if appropriate based on the other factors. Child support payments do not factor into this analysis, because they are intended for the child, not the spouse.
The rule of thumb is that the longer the marriage lasted, the greater the maintenance award will be. However, courts may award permanent maintenance even for relatively short marriages if one of the spouses is disabled or made significant career sacrifices during a short marriage.
The physical and mental condition of each spouse, as well as their ages, can affect earning capacity. If the spouse seeking maintenance has a disability, he or she is more likely to receive a larger award. If the spouse from whom maintenance is sought is disabled or approaching retirement a large award is less likely. If a short-term disability is involved the court may reserve ruling to determine the full extent of the disability. Courts are not bound by administrative agencies' determinations of disability.
Tax deductions and credits are factored in when the court determines the income of each spouse. Courts will also consider tax penalties for early withdrawal from retirement accounts. Courts will seek the most tax advantageous solution for both spouses. Read more about tax consequences as a factor in determining maintenance awards in divorce.
If the spouse seeking maintenance worked to pay for the education or subsidize the career of the other spouse, or worked in the other spouse's business, courts will award a larger maintenance award.
Divorce courts will honor any valid prenuptial or postnuptial agreements between the spouses as long as (1) the agreement explicitly deals with maintenance; (2) the agreement is not unconscionable; and (3) there is no undue hardship that was unforeseeable at the time of the agreement.
Courts are not limited to considering the above factors in determining maintenance. Judges have broad discretion to weigh any factor that they find to be "just and equitable."
Read more about income and property as a factor in determining maintenance awards in divorce.
.svg){kind=small}
.svg){kind=small}
.png){kind=small}
.svg){kind=small}
.svg){kind=icon}
.svg)
