The first question I ask a potential client is “how long have you been married?”
The length of the marriage impacts everything about an Illinois divorce. A short marriage will cause a judge to shrug and think, “They barely even know each other,” while a long marriage will result in pronouncements of permanent support and complete division of all assets.
Length Of Marriage And Maintenance In Illinois
Short marriages meant that the two parties barely relied on each other during the marriage. Therefore, Illinois divorce courts are less likely to award maintenance (formerly known as alimony) to a spouse who was in a short-term marriage.
“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just…The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:
“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” 750 ILCS 5/504(a)(4)
“Length of the marriage is germane because the longer the marriage, the more likely it is that the wife has foregone employment experiences, the absence of which will make it more difficult for her to achieve employment and self-sufficiency.” In re Marriage of Pieper, 398 NE 2d 868 – Ill: Appellate Court, 1st Dist. 1979 (citation omitted)
If the marriage is short enough, an Illinois court may deem that maintenance simply isn’t appropriate.
“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 5/5024(b-1)
Most Illinois divorce courts will simply turn to the guidelines duration calculations to determine maintenance.
“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). 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)
Any marriage that lasted under 5 years is not going to be a lot of maintenance. 33% of net income of the payor minus 25% of the income of the recipient for less than a year simply doesn’t amount to much.
Furthermore, maintenance is taxable to the payor. For such a short period of maintenance the payor is more likely to write a lump sum check and call it a property settlement to avoid the taxes.
Marriages that last more than five years have a progressively longer duration of maintenance.
Marriages which are older than 20 years will have a permanent maintenance award.
Courts are not required to order the guidelines duration of maintenance if they find good cause not to.
“[I]f the court deviates from applicable guidelines under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.” 750 ILCS 5/504(b-2)
Maintenance amounts that are not fixed or indefinite can be labelled as reviewable. “Reviewable maintenance. If a court grants maintenance for a specific term with a review, the court shall designate the period of the specific term and state that the maintenance is reviewable. Upon review, the court shall make a finding in accordance with subdivision (b-8) of this Section, unless the maintenance is modified or terminated under Section 510.” 750 ILCS 5/504(b-4.5)(3)
Reviewable means that maintenance may be over on the review date…or it just might get extended. “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)
Length Of Marriage And Division Of Assets In Illinois
The length of a marriage impacts the division of assets in an Illinois divorce in as much as that assets are more likely to be accumulated during the marriage.
Illinois divorce courts must classify all property owned by the divorcing couple as either marital or non-marital.
“The court shall make specific factual findings as to its classification of assets as marital or non-marital property” 750 ILCS 5/503(a)
Then, the Illinois divorce court divides the marital property.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
Whereas, non-marital property shall remain with the spouse that owns that property.
“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)
The distinction between marital and non-marital property is, usually, one of time.
Marital/divisible property is property which was acquired after the wedding date.
“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
Whereas, non-marital/non-divisible property was, usually, acquired before the wedding date.
[T]he following…which is known as “non-marital property”:
(6) property acquired before the marriage” 750 ILCS 5/503(a)(6)
The further away the wedding date is, the longer the marriage is, the more likely the property of the parties will be marital and, thus, divisible.
The real issue is how can you prove the date you acquired the property. Unless the property is real estate or an individual stock certificate, there’s probably not a written record of the date acquisition. Who has a receipt for a watch, a painting, jewelry, even a business? The dates of acquisition can be estimated…but probably not specified.
If the date of a property’s acquisition cannot be determined, that property will be deeded marital and, thus, divisible. “Any doubt as to the nature of the property must be resolved in favor of the finding that it is marital” In re Marriage of Steel, 2011 IL App (2d) 080974
Therefore, a long marriage can expect to see a 50/50 division of all assets simply because the assets of the married couple cannot be proven to be non-marital.
Length Of The Marriage And Children In An Illinois Divorce
Marriage or marital status is irrelevant in regards to children’s time and support in Illinois.
Length Of The Marriage And The After-Effects Of Divorce
I have divorced thousands of people in my 17 years of practice. The best part of what I do is when I see my clients on the street years later. My former clients are no longer under the cloud of a failing marriage persevering through the storm of a stressful divorce. My former clients are happy, thriving…they even look younger!
The happiest former clients, however, are the ones that moved away. Those clients all tell me the same thing: “after years with the same person, everything I saw reminded me of our old life. Now I live in Austin/Nashville/Milwaukee and I don’t have to think about them at all. I am completely happy with with my completely new life.”
Divorce is awful. Extracting someone from your life after years together is not easy. It is harder to be divorced after 20 years than it is to be divorced after 2 years. The longer your marriage was, the more important it is to remove your ex and the trauma they triggered from your life. This will take drastic steps like a new love interest, a new job, a new pet and a new home. Embrace the future. You’ve already let go of the past…at least on (divorce) paper(s).
If you would like to discuss your divorce and/or your marriage with someone who really understands, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.