In Illinois, a divorce court can award one party a monthly payment of maintenance from the other party based upon a showing of need and an ability to pay. This amount of maintenance (formerly known as alimony) is then set for a period of time or is made permanent.
This may seem like a daunting ongoing obligation but, in reality, it is extremely easy to modify a maintenance award. In my experience, the bigger challenge is in enforcing a maintenance award over the years.
But, does a maintenance modification cut both ways? Can a maintenance award increase with the payor’s income and the payee’s needs? Or do maintenance awards after an Illinoois divorce only modify one way: downwards?
Modification Or Maintenance Requires A Substantial Change In Circumstance After An Illinois Divorce
“Under Illinois law, all maintenance awards are reviewable.” In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, ¶ 23
Before an Illinois family law court will consider modifying a maintenance award, the party attempting to modify the award must prove that something has changed substantially.
“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)
“Courts in Illinois have held that “substantial change in circumstances” as required under section 510 of the Act means that either the needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed” In re Marriage of Anderson, 409 Ill. App. 3d 191(2011)
It is the person requesting the change that must prove that the change has, in fact, occurred.
“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)
A change in circumstances must not just be substantial. A change in circumstances must also not have been contemplated by the parties or court at the time of the agreement and/or judgment.
“[W]e are reluctant to find a “substantial change in circumstances” where the trial court contemplated and expected the financial change at issue.” In re Marriage of Reynard, 378 Ill. App. 3d 997, 1005 (2008)
Any failure to meet this first requirement of showing a substantial change in circumstances can allow a court to dismiss a motion to modify maintenance. “A trial court may eliminate meritless petitions to modify from its docket by the same procedures used in other cases, such as motions to dismiss and motions for summary judgment.” In re Marriage of Pedersen, 237 Ill. App. 3d 952, 957 (1992)
What If My Ex-Spouse’s Income Goes Up?
If your spouse is paying you income and your spouse’s income goes up, that probably won’t be a surprise to you, your spouse or the court.
The type of person who would be ordered to pay maintenance by an Illinois divorce court would be earning at least 150% more than their former spouse. Additionally, that person would be found to have the ability to pay maintenance to their former spouse beyond their own personal expenses. In short, maintenance payors are almost always professionals and not laborers.
Unless someone is stricken with an incurable disease, it is commonly acknowledged that a person’s income will consistently go up over time commensurate with their experience.
A maintenance payor will always have the presumption that they could make more in the future. Therefore, it is almost always contemplated at the time of judgment that a maintenance payor would make more money. If the change was contemplated, then the change is not a “substantial change in circumstances” under Illinois divorce law.
“We note that a party’s increased income does not constitute a substantial change in circumstances when the increase was based on events that were contemplated and expected by the trial court when the judgment of dissolution was entered.” In re Marriage of Salvatore, 2019 IL App (2d) 180425
Under Salvatore, an increase in the payor’s income will almost never warrant an increase in maintenance to the payee under Illinois divorce laws.
The statute has changed since the Salvatore decision to allow for modifications from uncontemplated salary increases.
“Contemplation or foreseeability of future events shall not be considered as a factor or used as a defense in determining whether a substantial change in circumstances is shown, unless the future event is expressly specified in the court’s order or the agreement of the parties incorporated into a court order.” 750 ILCS 5/510(a)(1)
Still, just because you CAN pay more does not mean you SHOULD pay more.
“The law does not require a party to pay more maintenance merely because he or she can do so” In re Marriage of Brunke, 2019 IL App (2d) 190201
“A party’s increase in income is generally not sufficient to warrant modification of a maintenance award.“ In re Marriage of Reynard, 378 Ill. App. 3d 997, 1005 (2008)
Remind the court that even if they find that the income increase is a substantial change in circumstances, the court does not have to modify maintenance. “When a court determines that there has been a substantial change in circumstances, it may modify the maintenance award, but it is not required to do so.” In re Marriage of Osseck, 2021 IL App (2d) 200268, ¶ 48
What If My Income Goes Down After An Illinois Divorce?
Economists like to say that “wages are sticky.” That is, no one takes a pay cut. People just get fired.
If you are receiving maintenance pursuant to an Illinois Marital Settlement Agreement, you can go to the court to request an increase in that maintenance to meet your new needs.
The court will consider the payee’s job loss as an opportunity to increase maintenance.
In order to modify a maintenance award based on a job loss or pay decrease, the court must consider “(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” 750 ILCS 510(a-5)
The job loss must NOT be the payee’s fault. The payee must be laid off in “good faith” and not fired for their own bad behavior.
There are practical impediments to increasing maintenance based on a job loss or decrease in pay. Specifically, it will take months for a court to hear a motion to modify maintenance. During that time, the movant is likely to acquire a new job at, presumably, a similar income to their old job. This renders the motion moot.
In reality, only a health problem will be cause for an increase in maintenance as a court must consider “any impairment of the present and future earning capacity of either party;” 750 ILCS 510(a-5)(3)
It is difficult to think of any impairment of future earning capacity that would not be health related.
Even if this impairment is deemed permanent and warrants an increase in maintenance, the increase will likely only follow the maintenance guidelines formula.
The maintenance guidelines formula requires that the payor pay 33% of his net income to the payee less 25% of the payee’s income. So, even in the extreme circumstance where the payee has no income, the maintenance will only increase by 25% of the payee’s former income.
In conclusion, maintenance in unlikely to ever increase after a modification. Maintenance almost only goes down or is terminated.
When Can Maintenance Can Be Modified Upwards In Illinois?
In theory, “[a]n 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)
In reality, it’s very difficult to establish a significant increase in need for maintenance coupled with an ex-spouse corresponding increase in ability to pay maintenance.
There is one exception to my sobering diagnosis that maintenance can almost never be modified upwards. That is if an order of temporary maintenance is made.
Temporary orders are temporary. They can be modified upwards or downwards throughout the case until the final judgment is entered and all temporary orders are extinguished.
Temporary maintenance awards can even be made retroactively.
“[C]ourt[s] have the statutory authority to award [parties] maintenance…from the date of [their] request” In re Marriage of Hochstatter, 2020 IL App (3d) 190132
Can Maintenance Duration Be Extended In An Illinois Divorce?
Except for permanent maintenance, every guidelines maintenance award has a termination date.
An extension of maintenance is possible under the Illinois statute but I have, personally, never seen it done.
“Upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed non-modifiable term, extend maintenance for an indefinite term, or permanently terminate maintenance in accordance with subdivision (b-1)(1)(A) of this Section.” 750 ILCS 5/504(b-8)
Furthermore, the review of maintenance duration is not bound by the requirement of a substantial change in circumstance as this opportunity for review is included in the statute that sets maintenance not the statute that modifies maintenance and thus invokes that requirement.
New Judges And Modifying Maintenance In Illinois
Often, a motion to modify maintenance won’t be heard by the original judge. As the years pass, judges move out of divorce court or they retire. The new judge must at least observe the old orders from the previous judge in context of the entire case file.
“Maintenance errors often occur when the judge hearing a case changes and the successor judge fails to adhere to—and may not even be aware of—the prior judge’s decisions and instructions to the parties. Therefore, it is incumbent upon the successor judge to carefully scrutinize the prior proceedings to determine the court’s previous directives and whether the parties have abided by them. Failure to do so may bring about a completely avoidable and unnecessary injustice by disrupting the parties’ settled expectations heading into future proceedings. In the context of maintenance, these errors are particularly significant, especially when the previous judge’s orders were based on familiarity with the parties, the issues, and the nuances of the case.” In re Marriage of Watson, 2022 IL App (2d) 210137
It will be your duty to inform the judge of what the previous rulings were and how their ruling may be inapposite to those rulings.
If you’re trying to modify your maintenance upwards, downwards or length-wise, feel free to contact my Chicago, Illinois family law firm to speak with a Chicago divorce attorney who thinks about this kind of thing…a lot.