Maintenance

According to the IRS, maintenance formerly called “alimony” and often referred to as “spousal support”is no longer deductible by the payor and does not count as income for the payee.

Courts order maintenance when one spouse must provide financial support to the other following a divorce, legal separation, annulment (Declaration of Invalidity of Marriage), or dissolution of a civil union. The payor spouse provides this support from their income or property, in amounts and for periods established by the court.

You must calculate the monthly maintenance amount before determining any child support. The court subtracts the maintenance payment from the payor spouse’s gross income to determine their net income, which then factors into the child support calculation.

Statutory Criteria for Maintenance Entitlement

The court must first make a finding as to whether a maintenance award is appropriate after considering all relevant factors, including:

1. the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;
2. the needs of each party;
3. the realistic present and future earning capacity of each party;
4. any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or forgone or delayed education, training, employment, or career opportunities due to the marriage;
5. any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;
6. the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party can support himself or herself through appropriate employment or any parental responsibility agreements, and its effect on the party seeking employment;
7. the standard of living established during marriage;
8. the duration of marriage;
9. the age, health, station, occupation, amount and sources of income, vocational skills, employment, estate, liabilities, and the needs of each of the parties;
10. all sources of public and private income, including, without limitation, disability and retirement income;
11. the tax consequences to each party;
12. contribution and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
13. any valid agreement of the parties; and
14. any other factor that the court expressly finds to be just and equitable.

Once the court finds that a maintenance award is appropriate, it is mandated to apply the Illinois statutory guidelines to determine the amount of maintenance to be paid, and for what length of time it is to be paid.

NOTE: The guidelines only apply if the spouses’ combined yearly gross incomes are less than $500,000.

Statutory Formula for Amount of Maintenance

In short, calculate maintenance by taking 33 1/3% of the payor’s net annual income and subtracting 25% of the payee’s net annual income. However, the court cannot award maintenance that, when added to the payee’s net earnings, exceeds 40% of the couple’s combined net incomes. Variations apply if the payor already pays child support or maintenance from a prior relationship, or if following the statutory guidelines would require the payor to pay more than 50% of their net income in combined child support and maintenance.

Statutory Formula for Duration of Maintenance

The duration of an award of maintenance shall be calculated by multiplying the length of the marriage at the time the action was filed with the court by whichever of the following factors applies:

LENGTH OF MARRIAGE	MULTIPLIER
Less than 5 years 5 years	0.2
5 years	0.24
6 years	0.28
7 years	0.32
8 years	0.36
9 years	0.40
10 years	0.44
11 years	0.48
12 years	0.52
13 years	0.56
14 years	0.60
15 years	0.64
16 years	0.68
17 years	0.72
18 years	0.76
19 years	0.80
20 years	for as long as length of marriage or for an indefinite period

Example: Using the above chart, if the parties were married 12 years at the time of the filing of their divorce case, you would multiply 12 x the multiplier. .52 = 6.24. The recipient spouse would therefore receive maintenance for 6.24 years. 

NOTE: The statute allows judges to deviate downwards from the maintenance and/or child support guidelines when the Obligor’s total maintenance and child support obligations would exceed 50% of the Obligor’s net income.

The Nine Factors for Changing an Alimony Award

Terminating, Reviewing, or Modifying Maintenance Awards

In addition to the 14 criteria used to determine alimony entitlement, Illinois law allows the court to consider nine additional factors when deciding petitions to modify, terminate, or review maintenance.

The nine statutory factors included in Sec. 510 (a-5) are as follows:

1. Any change in the employment status of either party, and whether the change has been made in good faith;
2. The efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
3. Any impairment of the present and future earning capacity of either party;
4. The tax consequences of the maintenance payments upon the respective economic circumstances of the parties;
5. The duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;
6. The property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of property;
7. The increase or decrease of each party’s income since the prior judgment or order from which a review, modification, or termination is being sought;
8. The property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
9. Any other factor that the court expressly finds to be just and equitable.