In Illinois, maintenance (formerly known as alimony) is always one of three different numbers:
- Zero. Because maintenance is not warranted in this divorce case.
- 33% of the payor’s net income minus 25% of the payee’s net income (with payor’s income and maintenance not to exceed 40% of the total of the two incomes)
- An amount appropriate based on the circumstances of the two divorcing parties.
To determine which of these three formulas will be applied in your Illinois divorce case and what number will, eventually, be arrived at as your maintenance payment, the below analysis must occur.
Will There Even Be Maintenance In Your Illinois Divorce?
For every divorce case in Illinois, the court must first find that ANY maintenance award is appropriate.
“In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the 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. 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 5/504(a)
With 14 possible reasons to award maintenance (one of which is “any other factor”) you have a 99% chance that an Illinois divorce court will find that maintenance is appropriate in your Illinois divorce case. The only question is how much maintenance will you be ordered to pay or receive in your Illinois divorce.
The next question will be whether the maintenance awarded will be pursuant to guidelines or whether it will be a non-guidelines maintenance award.
Calculating Guidelines Maintenance In An Illinois Divorce
“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1)
Guidelines maintenance is the official calculation which determines most divorced couples’ maintenance obligation.
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)
There is a cap on the guidelines maintenance calculation.
“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 5/503(b-1)(1)(A)
This means that if one spouse is making more than 50% what the other spouse is making, there will be some kind of maintenance payment.
Furthermore, the 40% total income cap means that a spouse never pays the full maintenance calculation amount unless they are making 300% or more of what the other spouse makes.
While most divorced couples in Illinois will pay the guidelines maintenance calculated amount, there are numerous opportunities to that the court NOT apply the guidelines maintenance amount.
Non-Guidelines Maintenance In An Illinois Divorce
There are a few automatic triggers that allow an Illinois divorce court to abandon the guidelines maintenance calculation.
If the parties to an Illinois divorce make more than $ 500,000, those incomes will deem a guidelines maintenance calculation to be automatically inappropriate.
“If the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with [the guidelines]” 750 ILCS 5/503(b-1)(1)
If there are other child support or maintenance obligations that would render the payor’s income garnished at a rate in excess of 50%, the guidelines maintenance calculation shall be abandoned.
“If the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline maintenance.” 750 ILCS 5/503(b-1)
Outside of those two exceptions, an Illinois divorce court will award maintenance that is not calculated pursuant to the guidelines formula…but only if you ask for it.
“To be clear, [The Illinois Marriage And Dissolution Of Marriage Act] does not mandate strict compliance with these formulas in every case. Rather, the statute provides that the guidelines must be followed ‘unless the court makes a finding that the application of the guidelines would be inappropriate.’ In re Marriage of Brill, 87 NE 3d 302 – Ill: Appellate Court, 2nd Dist. 2017
An Illinois divorce court can award non-guidelines support IF they find a good reason to do so.
“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.” 750 ILCS 5/503(b-1)(2)
The reasons to deny the guidelines maintenance calculation are the exact same reasons to award maintenance that were listed at the beginning of the article.
With a clever and convincing argument, the guidelines maintenance calculation can be avoided and a different maintenance amount should be awarded. The argument will have to be so clever and convincing that the judge must include it as a finding in their argument.
“[I]f the court deviates from applicable guidelines…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 5/503(b-2)(2)
This finding by a court is a big step because it leaves the judge vulnerable to appeal. The findings of a judge who issues non-guidelines maintenance may be directly inapposite to the evidence presented. In such a case, the ruling can be appealed.
“An order is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary and not based on the evidence.” In re Vanessa K., 2011 IL App (3d) 100545 – Ill: Appellate Court, 3rd Dist. 2011
“[A] trial court abuses its discretion if it fails to apply the proper criteria when it weighs the facts” Paul v. Gerald Adelman & Associates, Ltd., 858 NE 2d 1 – Ill: Supreme Court 2006
For this reason, Illinois divorce judges are extremely hesitant (in my opinion) to deviate from the guidelines maintenance calculation because the findings required to deviate from the guidelines maintenance calculation are inherently ripe for appeal.
Calculating Maintenance After A Modification
“[N]early all maintenance awards are implicitly reviewable and modifiable.” In re Marriage of Watson, No. 2-21-0137, 10 (Ill. App. Ct. 2022)
Maintenance modifications require a substantial change in circumstances.
“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)
Once you have a substantial change in circumstances you have an appropriate finding for a court to recalculate maintenance.
“In an adjudicated case, the court shall make specific factual findings as to the reason for the modification as well as the amount, nature, and duration of the modified maintenance award.” 750 ILCS 5/510(c-5)
A post-judgment modified maintenance amount need not be constrained by the guidelines maintenance calculation. There is nothing in the Illinois Marriage and Dissolution of Marriage Act that requires that guidelines be the basis for recalculation.
“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” 750 ILCS 5/503(b-8)
Judges will be inclined to continue to use the guidelines maintenance calculations in their modification decisions…unless you remind the judge that this is not technically required and the finding of a substantial change in circumstances will be sufficient to establish a non-guidelines maintenance award as well.
If you are struggling with how much maintenance you will eventually pay or receive during and after an Illinois divorce, contact my Chicago, Illinois family law firm to schedule a consultation with an experienced Illinois divorce lawyer.