Illinois law provides that maintenance (formerly known as alimony) is awarded “For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.” 750 ILCS 504(b)(1)(b)
What does “permanent” maintenance, exactly? Does it truly go on forever?
What about retirement? What if you become incapable of working as the years pass? What if you simply can’t work as much or earn as much as you did previously?
Section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act provides that “an order for maintenance may be modified or terminated only upon a showing of substantial change in circumstances.”
So, unless the marital settlement agreement explicitly states that maintenance is non-modifiable, the maintenance order is implicitly modifiable upon a showing of substantial change, regardless of whether the maintenance was labelled “permanent.”
Section 510(a-5) then goes on to provide a list of factors for trial courts to consider in reviewing maintenance orders.
- 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 the property;
- The increase or decrease in each party’s income since the prior judgment or order form 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.
It is the burden of the person trying to modify the maintenance to prove that a substantial change has occurred.
Of course, the biggest substantial change in circumstances is the payee’s remarriage or entry into a “conjugal relationship” with another person. This almost always creates a complete termination of the payor’s maintenance obligations. Often, proving the conjugal relationship requires a private detective who records things like where the spouse or ex-spouse’s car was overnight.
The next step of the analysis is to consider whether the substantial change had been contemplated or not. Bernay 2017 IL App(2d) 160583 states that “the ‘change’ must not have been contemplated when permanent maintenance was ordered.” Therefore, if you get a permanent maintenance award and you’re close to retiring, a court may rule that you had in fact contemplated retirement when you entered the maintenance order. In contrast, an accident or medical incident that prevented you from working would obviously not have been contemplated.
And what if you stop working but still have assets? Walker, (386 Ill App 3d) says the recipient of permanent maintenance is entitled to maintain “the standard of living established in the marriage as long as the payor spouse has sufficient assets to meet his needs and the needs of his former spouse”.
In conclusion, an award of permanent maintenance is not be lightly terminated. “A marriage is a partnership, not only morally but financially. Spouses are coequals and homemaker services must be recognized as significant when the economic incidents of divorce are determined. The former homemaker should not be penalized for having performed his or her assignment under the agreed upon division of labor within the family. It is inequitable upon dissolution to saddle the former homemaker with the burden on his or her reduced earning potential and to allow the wage-earning former spouse to continue in the advantageous position he or she reached through their joint efforts” Lenkner 241 Ill App 3d at 25.