Prior to July 1, 2015, the amount and duration of spousal maintenance awards in Illinois divorces, also known as alimony or spousal support, were determined at the discretion of the court by the judge weighing several factors specifically listed in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101, et seq.) (the "IMDMA"). However, in 2015, law was passed that changed this calculation.
According to the new law, the court will weigh these factors to determine whether maintenance is appropriate. However, if maintenance is appropriate, the court is now instructed to use specific formulas to determine both the amount and the duration of the award in most cases. In certain cases, courts are permitted to deviate from the statutory formulas, in which case the divorce court will use the statutory factors to determine the amount and duration of the maintenance award.
In determining whether spousal maintenance is to be awarded, the divorce courts will assess the following factors. These factors are also weighed to determine the amount and duration of child support in cases in which the statutory formula is not applied. Each of these factors is discussed in detail at the conclusion of this article:
If the court finds that alimony is appropriate, the next determination is whether the statutory formulas will be applied to determine the amount and duration of the maintenance award. Judges are instructed to apply the statutory formula in cases in which the couple's combined gross yearly income is less than $250,000.00 and in which neither spouse has children from a previous marriage. In cases in which the combined gross yearly income exceeds this amount, courts will have discretion to determine the amount and duration of the maintenance award by weighing the factors listed above.
You should be aware that divorce courts are not required to follow the statutory guidelines for amount and duration of the maintenance award in every case in which the combined gross income is less than $250,000.00. However, if the judge chooses not to follow the statutory guidelines in these cases, the order in which maintenance awarded must lay out the amount and duration that the guidelines would call for and the judge's specific reason for departing for the guidelines.
If the judge chooses to award maintenance, the statutory guidelines call for the following formula to be applied to determine the amount of spousal maintenance to be paid each year:
(30% of the gross income of the spouse who will pay maintenance) - (20% of the gross income of the spouse who will receive maintenance) = The amount of spousal maintenance to be paid each year.
There is one caveat to this formula. The statutory guidelines do not permit the spouse receiving maintenance to be awarded more than 40% of the couple's combined gross income. The judge will perform a second calculation to ensure that this doesn't happen. The judge will add the amount of the yearly maintenance award derived from the first calculation to the gross income of the spouse receiving maintenance. If this number equals more than 40% of the couple's combined gross income, the judge will reduce the maintenance award.
So what is included in each spouse's "gross income" for the purposes of calculating the amount of the maintenance award?
The Income Withholding for Support Act defines "income" as any form of periodic payment to the party in question, regardless of source, including but not limited to:
The following items are not considered "income":
Once the amount of the maintenance award has been calculated, the judge will determine the duration of the maintenance payments.
For marriages longer than 20 years, the judge has discretion to order either permanent maintenance or maintenance for a number of years equaling the duration of the marriage.
For marriages that lasted 20 years or less, the judge multiplies the number of years of the marriage by a specific percentage to determine the number of years that the maintenance payments will continue:
As discussed above, courts will assess several factors as a threshold issue to determine whether a maintenance award is appropriate at all. Courts will also use these factors to determine whether there is a reason to deviate from the statutory maintenance formulas and to determine maintenance awards for couples with a combined gross income in excess of $250,000.00. Below, we will elaborate on how divorce courts weigh each of these factors.
Courts will ultimately consider the "net income" of each party, based on definitions found in two statutes: The Income Withholding for Support Act (750 ILCS 28/1, et seq.) and The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101, et seq.) (the "IMDMA").
The first step is to determine what constitutes "gross income" according to these statutes, as discussed above. The next step is to deduct certain expenses in order to calculate the "net income" of each party.
Once gross income is determined, the following expenses will be deducted to calculate "net income":
The court will examine each party's needs with equal emphasis, including the party from whom maintenance is sought. The goal of the needs analysis is determine whether one party needs maintenance, and, if so, whether the other party has the ability to pay. The court has broad discretion in determining what needs are reasonable. Even if the spouse seeking maintenance is employed, the court may award maintenance if it is deemed necessary to continue the standard of living enjoyed during the marriage. However, if the couple lived frugally during the marriage, this fact alone will not serve as an argument to reduce the maintenance award.
The bottom line is that the needs analysis for maintenance is determined on a case-by-case basis by the trial court, depending on the specific facts of each case.
If one spouse is unable to be "financially independent" courts are likely to award maintenance. "Financial independence" means that the spouse is able to continue the same standard of living that he or she enjoyed during the marriage. This goes beyond simply the ability to pay minimum expenses.
Permanent maintenance is often awarded when one spouse is not employable or will only be employable in the future at a wage that will be too low to meet his or her previous standard of living.
However, the spouse seeking maintenance has a duty to seek appropriate employment. Courts will not allow a spouse seeking maintenance to simply live off of the maintenance award if the individual is employable.
In determining the terms of maintenance in divorce, courts will consider whether the spouse seeking maintenance made career or education sacrifices during the marriage in order to perform domestic duties. Courts will also consider future career sacrifices that the spouse will be required to make in order to care for the children of the marriage.
Courts will review the spouse's entire employment history to determine whether any breaks in employment affected the spouse's rate of pay or seniority. Courts will consider the spouse's career expectations at the time of the marriage, and how the domestic duties of the marriage may have impaired those expectations. The attorney for the spouse seeking maintenance will try to establish how the spouse's position today would be different had he or she not made sacrifices for the marriage.
Another factor that courts will consider is the time needed to obtain training or education, and whether employment or education may be inappropriate due to custody of children. If a spouse can be appropriately self-sufficient after education or training for a specific time frame, then rehabilitative maintenance for that time frame may be awarded.
Finally, depending on the circumstances, custody of a child may excuse a spouse from the affirmative duty to seek employment or training. In this case the spouse seeking maintenance must show that the cost of day care, or the spouse's employment hours make it impossible or impractical to arrange for the children's care during work.
Courts attempt to avoid, after a divorce, allowing one spouse to continue the standard of living enjoyed during the marriage while the other spouse lives at a reduced standard of living. In order to receive maintenance based on standard of living during the marriage, the spouse seeking maintenance must prove both (1) the standard of living enjoyed during the marriage; (2) and the other spouse's ability to afford maintenance payments. The ultimate goal is to provide both spouses with as close to equal a standard of living as possible, which as closely as possible approximates the standard of living that they enjoyed during the marriage.
Even if it is not possible for both spouses to enjoy the same standard of living they enjoyed during the marriage, the court will attempt to close any gap between the two spouses' standards of living as much as possible. On the flip side of this coin, even if the spouse seeking maintenance could meet his or her expenses and still have a disposable income without maintenance, Courts may nonetheless award maintenance if doing so would be necessary to approximate the spouse's pre-divorce lifestyle, even if that lifestyle was lavish.
Courts will not always provide for a spouse's standard of living permanently, and may award temporary maintenance if appropriate based on the other factors that courts must consider.
Finally, child support payments should not affect maintenance, as the child support is intended for the child while the maintenance is intended for the spouse.
The single most important factor in determining the amount and duration of a maintenance award in divorce is the duration of the marriage. This is because short marriages do not allow time for many of the other factors to become significant. For example, in a one-year marriage, it is unlikely that the spouse seeking maintenance will have had earning capacity or career opportunities significantly impaired, or that he or she would have become sufficiently accustomed to a certain standard of living.
The spouse from whom maintenance is sought may argue that he or she should not pay maintenance for a duration longer than the marriage. However, even for a short marriage, courts may find that other factors outweigh the duration of the marriage. For example, in In re Marriage of Stam, 260 Ill.App.3d 754 (3d Dist. 1994), the court awarded maintenance for a period longer than the spouses' five-year marriage, because the spouse seeking maintenance had multiple sclerosis and it was unlikely she could ever become self-supporting. In In re Marriage of Hasabnis, 322 Ill.App.3d 582 (1st Dist. 2001), the court found that a one-year marriage had a significantly negative impact on the wife's career, and that this factor outweighed the short duration of the marriage.
The rule of thumb is that the longer the marriage, the greater the maintenance award, depending of course on the other factors involved.
We previously discussed the present and future earning capacity of each spouse as well as the standard of living enjoyed during marriage. However, the age and physical and mental condition of each spouse may affect both of these factors.
For example, when a party seeking maintenance suffers from a permanent mental or physical disability, this may reduce earning capacity and weigh in favor of a permanent maintenance award in order to allow that spouse to maintain the standard of living that he or she enjoyed during the marriage. Poor health tends to result in a larger maintenance award.
In In re Marriage of Grunsten, 304 Ill.App.3d 12, 709 N.E.2d 597 (1st Dist. 1999), the court found that the wife's return to the modeling industry in which she had previously employed would negatively impact her self-esteem. Since the wife had been diagnosed with clinical depression, the court awarded maintenance in order to not require her to return to that industry.
The physical condition of the parties may also carry more weight with the court than the duration of the marriage. When a spouse suffers from a permanent disability, permanent maintenance may be awarded even if the marriage was short in time.
When the spouse from whom maintenance is sought has potentially reduced income from a physical or mental condition or because that spouse is nearing retirement age, the maintenance award may be reduced despite a previously high earning capacity.
The court may reserve ruling and set a future hearing date in the case of a potentially short-term physical disability, in order to determine whether the disability will ultimately allow the spouse seeking maintenance to return to work. Finally, the court will not be bound by an administrative agency like the Social Security Administration's determination of a spouse's medical condition, but may make its own determination.
In determining the amount of maintenance to be awarded, courts must determine the actual income stream available from the spouse from whom maintenance is sought. Tax deductions and credits such as deductions for business expenses, tuition, and child care will be considered by the court in determining the amount of income available for maintenance.
In determining how property is divided, courts will consider the tax consequences of such division, such as penalties for early withdrawal from IRAs and other retirement accounts. If an early withdrawal from an IRA can be made from an IRA to provide for the education of the spouse seeking maintenance, then the maintenance award for education or training of the spouse seeking maintenance may be taken care of through property division rather than maintenance, and the maintenance award would be less than it would have been had the IRA funds not been available for this purpose without penalty.
Maintenance payments are tax deductible to the spouse making the payments if the following requirements are met:
One of the factors that courts consider in determining the amount of maintenance to award in divorce is the contribution that each spouse made to the other's career, education, or training. When one spouse works to support the family while the other obtains an education, or uses his or her income to pay for the education of the other spouse, the court will tend to increase the maintenance of the spouse that contributed to the career advancement of the other. This consideration can also encompass other sacrifices, such as relocation for the sake of the other spouse's job opportunities.
In addition to the nine specifically enumerated factors that the court must consider in determining the amount of maintenance to award, the court has discretion to consider any other factor that it finds "just and equitable." In order to consider other factors, the court must expressly state that they find the factor to be relevant. Examples of other factors that courts have considered are:
There is a limit to the court's discretion in considering other factors. Factors that courts may not base maintenance decisions on include:
Prior to marriage, the spouses can sign a prenuptial agreement, determining in advance how property will be divided and maintenance will be awarded in the event of divorce. Agreements to this effect can also be executed during the marriage or even after the divorce proceeding has been initiated. These agreements will typically be honored by the court in the context of maintenance so long as maintenance is explicitly addressed. However, the agreement may not be honored if an undue hardship exists at the time of the divorce that was not foreseeable at the time that the agreement was executed. It should be noted that agreements executed after 1990 are governed by the Illinois Uniform Premarital Agreement Act, 750 ILCS 10/1, while agreements executed prior to 1990 are governed by case law. The primary difference is that the agreements governed by pre-1990 case law can be invalidated not only in the case of unforeseeable circumstances that cause undue hardship, but also if the agreement does not guarantee both parties an equitable financial settlement.
Shannon12/21/2016 09:58:35 pm
My husband's maintenance payments to his ex wife are based on the amount of money he has been making working overtime. We go back to court every year to have his maintenance reduced because he has been slowly reducing his overtime because reducing it all together leaves him $400 a month to live on after the child support and maintenance are paid. She only went back to work 6 months ago, he left because she wouldn't go to work so he could stop working the overtime. The lifestyle she was accustomed to was only being accomplished by him working on average 62 hours a week, using his credit card reimbursements from travel to pay some of the bills and she was still over-drafting the checking account every two weeks. He would like to stop working the overtime because he is getting older and it's physically demanding work. Is there a way to accomplish this? She has also ruined his credit by not paying the mortgage on the house that she continued to live in until they started foreclosure proceedings on it.
Reply Kevin O'Flaherty 12/23/2016 01:09:10 pm
Thanks for reading and commenting, Shannon. Your husband may be able to have his maintenance reduced. In order to give you a firm answer, we would need to conduct an initial consultation to discuss all of the details with him. Please feel free to call us at (630)324-6666. We'd be happy to help.ReplyShannon12/23/2016 02:18:08 pmDo you practice in Chillicothe/Peoria?
Reply Kevin O'Flaherty 12/23/2016 03:48:58 pm
Yes we do. Depending on the case we would probably associate with a local counsel to handle routine court appearances.Kathryn2/21/2017 07:36:38 pmHi there. Great blog, and extremely informative. I was awarded maintenance payments through the divorce settlement. As most who are dependent upon these payments, I was dismayed to learn that my ex-husband has placed his two-week notice to his employer of 30+ years and is planning to move out of state to Florida. I am wondering if you might have some insight how this may affect his responsibility to the court order and can he rightfully reduce his maintenance payments based upon a reduction in income for a voluntary loss of substantial employment?
Reply Kevin O"Flaherty 2/23/2017 02:50:50 pm
Thanks for the question, Kathryn. Courts will typically consider the "potential income" of individuals who are voluntarily unemployed or underemployed. Courts disfavor allowing individuals to quit their jobs in order to avoid paying maintenance. The court will look at the circumstances to determine whether your ex had a valid reason for quitting, such as pursuing education or relocation. Disclaimer: This post is not intended to create an attorney-client relationship or to constitute legal advice. Before taking any action, I recommend consulting with an attorney at our firm or at another firm of your choice. Feel free to call us at (630)324-6666 for a free consultation.