Maintenance (Alimony / Spousal Support)
MAINTENANCE (formerly known as “Alimony” and commonly referred to as “Spousal Support”)
As per the IRS, maintenance is no longer deductible to the payor, and is not to be included in the payee’s income.
Maintenance is court-ordered support that one spouse must pay to the other in the event of divorce, legal separation, annulment (Declaration of Invalidity of Marriage), or dissolution of a civil union. It may be paid from the income or property of the payor spouse, and shall be in amounts and for periods of time as set forth below.
The amount of monthly maintenance must first be determined before a child support calculation, if any, is possible. The amount to be paid in maintenance is deducted from the payor spouse’s gross income, and is a component in determining his/her net income for child support purposes.
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 is able to support himself or herself through appropriate employment or any parental responsibility agreements and its effect on the 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 a nut shell, the amount of maintenance shall be calculated by taking 33 1/3% of the payor’s net annual income, and subtracting from it 25% of the payee’s net annual income. However, the amount calculated as maintenance, when added to the net earnings of the payee, cannot exceed 40% of the parties’ combined net incomes. [There are some variations to this when the payor spouse is already paying child support or maintenance or both from a prior relationship, or if applying the statutory guidelines would result in the payor spouse being required to pay combined child support and maintenance in excess of 50% of his/her net income.]
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|
|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
Aside from the 14 criteria that are used to determine entitlement to alimony, Illinois gives the court nine additional factors to use in deciding petitions that seek modification, termination or a review of maintenance.
The nine statutory factors included in Sec. 510 (a-5) are as follows:
- Any change in the employment status of either party and whether the change has been made in good faith;
- The efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
- Any impairment of the present and future earning capacity of either party;
- The tax consequences of the maintenance payments upon the respective economic circumstances of the parties;
- The duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;
- 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;
- 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;
- 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
- Any other factor that the court expressly finds to be just and equitable.
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Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 70 years of combined trial experience in the Illinois divorce courts of Cook, DuPage, and Will counties.