Alimony / Maintenance
Alimony is the common term for a payment a former spouse regularly makes to their former spouse pursuant to a divorce court order.
The state of Illinois abandoned the term “alimony” for the less controversial term, “maintenance”
Maintenance is a monetary sum paid by one spouse for the benefit of the other spouse upon separation or the dissolution of marriage; also called “alimony” or “spousal support.”
In determining how much one spouse will pay another spouse maintenance (formerly known as alimony), In Illinois the first step is to determine if the spouse should even get maintenance at all. To make this determination the courts consider the following factors.
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. 750 ILCS 504(a)(1). So, if one party has a great deal of assets, they may not be entitled to maintenance because they can presumably support themselves with those assets.
The needs of each party. 750 ILCS 504(a)(2). For example, A party who pays for an expensive medicine out of pocket may receive more maintenance than they would otherwise.
The realistic present and future earning capacity of each party. 750 ILCS 504(a)(3). A doctor leaving their residency to be an attending may not be entitled to maintenance as the doctor’s earning capacity would vastly increase in the near future.
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 foregone or delayed education, training, employment or career opportunities due to the marriage. 750 ILCS 504(a)(4). This specifically contemplates housewives and househusband getting maintenance.
Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought. 750 ILCS 504(a)(5). This contemplates the situation where the person paying the maintenance is having a flush year but the situation may change in the near future, such as an impending retirement.
The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment. 750 ILCS 504(a)(6). This part of the statute puts the onus on the party receiving the maintenance to get education but at the same time understands that the party may not be able to get further education if they’re working full time and/or raising children.
The standard of living established during the marriage. 750 ILCS 504(a)(7). While this factor will sound familiar because it is mentioned in movies and on television, this is a very fuzzy standard and, therefore, shouldn’t be considered as strongly as the better defined portions of the statute.
The duration of the marriage. 750 ILCS 504(a)(8). It is very common for judges to deny maintenance entirely for a very short marriage.
The age, health, station occupation, amount and sources of income, and sources of income, vocational skills, employability, estate liabilities, and the needs of each party. 750 ILCS 504(a)(9). Again, this is a real laundry list of items of factors to consider which are quite vague.
All sources of public and private income including, without limitation, disability and retirement income. 750 ILCS 504(a)(10). When the parties approach retirement age, they also become eligible for social security which may obviate the need for maintenance at all.
The tax consequences of the property division upon the respective economic circumstances of the parties. 750 ILCS 504(a)(11). While parties may be awarded 401ks or other assets which have experienced appreciation, the court must account for the fact that those assets may have significant tax liabilities when cashed out.
Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse. 750 ILCS 504(a)(12). This is the classic, “she put him through medical school scenario”.
Any valid agreement of the parties. 750 ILCS 504(a)(12). This refers to prenuptial or postnuptial agreements.
Any other factor that the court expressly finds to be just and equitable. 750 ILCS 504(a)(14). This factor just underlines the fact that these items are not a specific checklist as much as a map for a way to think about maintenance as a whole. In the end, you can argue anything.
After determining if the spouse is entitled to maintenance, the court must then determine the amount of maintenance.
If the parties to the divorce make more than $ 500,000 annually together the court considers all 14 factors in determining a maintenance amount. The court just picks a number it considers fair. The court does not make a calculation for these high-earners. This is how maintenance was arrived at for all parties for decades before the law changed in 2016.
If the parties make less than $ 500,000 together, after adding both of their incomes, then it’s a pure mathematical formula.
Calculate 33% of the payor’s net income and subtract from that 25% of the payee’s net income. This is the annual maintenance rate.
There is a ceiling however, the payee must never get in excess of 40% of the combined gross income of the parties.
If one of the parties is paying maintenance or child support for a previous relationship, the obligation of the pure mathematical formula may be waived.
The maintenance payment is taxable to the payor.
The next question is how long will this maintenance last?
“The duration of an award under this paragraph (1) 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).” 750 ILCS 504(b-1)(B)(1)
The court can deviate from these formulas if it wishes to but the court must issue “findings”. That is, the court must explicitly state the reason it did not use the formula.
The court may require the payor to purchase life insurance to secure this maintenance obligation.
If you have other maintenance questions contact my Chicago, Illinois law office to schedule a free consultation and learn more.
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