Posted on December 26, 2021

Can A Working Spouse Get Maintenance In Illinois?

In Illinois, alimony is now called “maintenance.” An Illinois divorce court is empowered to award maintenance during an Illinois divorce.

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)

How Maintenance Gets Awarded In An Illinois Divorce

The first step in determining if whether a working spouse should be awarded maintenance AT ALL.

“The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of 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 having 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;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, 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) contributions 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.” 750 ILCS 5/503(a)

Basically, if a divorce court can find any reason to award a spouse, whether they are working or not, maintenance, that court can order maintenance.

If a court deems maintenance inappropriate because of either spouse’s work situation, maintenance may be barred.

“Unless the court finds that a maintenance award is appropriate, it shall bar maintenance as to the party seeking maintenance regardless of the length of the marriage at the time the action was commenced. ” 750 ILCS 5/504(b-1)

With 14 plus reasons to just consider maintenance…maintenance is rarely barred at this stage of the analysis.

Guidelines Maintenance In An Illinois Divorce

Just because maintenance is deemed possible by a court after this initial assessment, that does not mean that maintenance will be awarded based on the actual calculations the court is empowered to order.

“Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/504(b-1)

If the parties have a combined income of less than $ 500,000 (that’s 98% of households) then maintenance shall be calculated as follows:

“The amount of maintenance under this paragraph (1) shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/504(b-1)(1)

For an example: If Fred makes $ 150,000 and Wilma makes $ 50,000, Fred should pay Wilma ($150,000 * 33% = $50,000) less ($50,000 * 25% = $ 10,000) or $ 40,000. However, if Wilma collects $ 40,000 from Fred and earns $ 50,000 her net income is $ 90,000. $ 90,000 is 45% of the total income of both parties ($ 150,000 + $50,000 = $ 200,000). So, Wilma could only be awarded a maximum of $ 30,000 to keep her underneath the 40% threshold ($ 200,000 * .4 = $80,000)($80,000 – $50,000 = $ 30,000)

Maintenance is a pure calculation for most divorcing couples. When calculating maintenance, it doesn’t matter how much either party works, what matters is the couples’ net incomes.

Once the maintenance amount is set per guidelines, the maintenance duration is also determined per guidelines.

Guidelines maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)

Non-Guidelines Maintenance In An Illinois Divorce

The only way to get out of the guidelines calculation is if the “court makes a finding that the application of the guidelines would be inappropriate.” 750 ILCS 5/504(b-1)(1)

If the court chooses to not follow maintenance, the court must turn back to the amorphous factors that initially allowed the court to determine that maintenance was appropriate.

“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors” 750 ILCS 5/504(b-1)(2)

Courts are loath to come up with their own numbers because the court must explain why the court did not apply the default law…in writing.

“[T]he court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor” 750 ILCS 5/504

This leaves the decision to deviate from guidelines maintenance open to an appeal…which no judge wants (but they may risk it if they have good reason)

The reasons to deviate are almost always based on getting the maintenance receiving spouse “back on their feet” with an order that allows the court to “check in” to see if the maintenance (and the spouse) is working.  

“[T]he court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/504

If the maintenance receiving spouse is already working, there’s no need for non-guidelines maintenance to track the progress of their job search.

If the combined gross incomes of the divorcing parties are in excess of the $ 500,000 the courts won’t follow maintenance guidelines because $166,000 (tax-free) is too much maintenance or, more likely, both spouses are both working and able to support themselves.

Modifying Maintenance Because The Maintenance Receiver’s Income Increased

Once maintenance is awarded, there is usually a clause in the Marital Settlement Agreement requiring the parties to exchange tax returns and W2s on an annual basis. If the maintenance receiving spouse’s income has increased that may be the basis for a modification of maintenance.

“Under Illinois law, all maintenance awards are reviewable.” In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, ¶ 23

“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)

It’s not clear how much of a change of income would be needed to be “substantial.” The threshold of a substantial change in income for child support purposes is 20% so maintenance would be similar.

People enjoy receiving free money more than they enjoy working for money. So, don’t expect a working spouse’s career to take off after a maintenance award.

Furthermore, it will be almost impossible to impute any income for any promotions the maintenance receiving spouse may have passed on.

“The party seeking modification of a maintenance order has the burden of showing that a substantial change in circumstances has occurred.” In re Marriage of Anderson, 409 Ill. App. 3d 191(2011)

In theory, if you could prove the working, maintenance receiving spouse was underpaid, the court could impute income.

“The amount of income imputed by the court must be supported by evidence showing that it is commensurate with the [spouse’s] skills and experience.” In re Marriage of Liszka, 2016 IL App (3d) 150238

Maintenance If A Working Spouse Loses Their Job Or Their Income Decreases

A maintenance modification can cut both ways. If a working, maintenance receiving spouse loses their job they may request an increase in maintenance.

“An alimony award can be modified either when the needs of the spouse receiving alimony change or the ability of the other spouse to pay alimony changes.” Shive v. Shive, 57 Ill. App. 3d 754, 760 (Ill. App. Ct. 1978)

Modifications of maintenance usually take 3 to 6 months to be heard by an Illinois domestic relations court. So, the working spouse will usually have found similar employment and, if not, income will be imputed to them.

Other Reasons Maintenance Gets Modified

Maintenance is always reviewable after an Illinois divorce. Maintenance is set for a period of years. People’s lives change dramatically over the course of years: both where they work and who they live with.

Specifically, people who used to be married…like getting married. The marriage of a maintenance receiving spouse will terminate the maintenance award.

“[T]he obligation to pay future maintenance is terminated upon…the remarriage of the party receiving maintenance” 750 ILCS 510(c)

A maintenance receiving spouse may be slow to remarry, but they are likely not slow to get into a new relationship.

“[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 510(c)

Cohabitation is a much more amorphous concept and it is always litigated.

If your spouse is working, they may or may not be awarded maintenance based on your respective incomes. Likewise, if you’re a working spouse, you may eligible for maintenance if you make less than half of what your spouse does. Either way, make sure you get every dime that’s coming to you or only pay what you must. Contact my Chicago, Illinois family law firm to speak with experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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