Avoiding Alimony In An Illinois Divorce

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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How To Avoid Paying Maintenance In Illinois

Avoiding Alimony In An Illinois Divorce

The prospect of divorce is frightening. Splitting assets and seeing your children half the time (or less) are harrowing possibilities but the continuing obligation of maintenance (formerly known as alimony) seems the most daunting. Before the divorce, you were supporting one household with two incomes. After the divorce, you may be expected to support two households (your household and your ex-spouse’s) on one income. How do you avoid the additional, ongoing obligation of maintenance during and after your Illinois divorce?

Who Has To Pay Maintenance In Illinois?

Either party may request maintenance in 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” 750 ILCS 5/504

The first step a court does is determine whether maintenance is even appropriate for the divorcing couple.

“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 reasons to award maintenance, it is going to be very hard to avoid a maintenance order from an Illinois divorce court unless there’s some extreme factor like a pending inheritance or an extended separation.

How Much Maintenance Will I Pay In My Illinois Divorce?

Maintenance in Illinois is calculated according to the “guidelines”

“[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 calculated using the following formula:

“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)

This formula has a strict maximum maintenance payment amount.

“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)

Your income and spouse’s income is what determines maintenance in an Illinois divorce.

If your spouse qualifies for maintenance, maintenance can be lowered by you earning less and your spouse earning more. Changing your income or your spouse’s income is the only way to avoid maintenance if there has been a guidelines order. So, you may want to request non-guidelines maintenance.  

How To Ask For Non-Guidelines Maintenance In An Illinois Divorce

To get the court to NOT calculate your maintenance obligation according to the guidelines formula, you need only ask.

“[T]he [Illinois Marriage and Dissolution of Marriage Act] 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

The same voluminous reasons to award maintenance can be used to ask for a deviation from the guidelines.

“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)

There are 14 reasons why 33% of your income less 25% of your spouse’s income is not fair. If you cannot use one of those factors to get a non-guidelines maintenance award…you are not trying very hard.

You have to be specific in your reasoning to deviate from guidelines maintenance because the court is obligated to put that reason into writing (more easily subjecting the court’s decision to appeal)

“[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)

There are also a few automatic triggers that prevent a guidelines maintenance award.

If you and your spouse’s combined earnings are over $ 500,000, you’re not going to pay guidelines maintenance.

“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)

Likewise, if you are already paying a lot of child support, you will not be expected to pay guidelines maintenance on top of that child support.

“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 5/504

The non-guidelines maintenance amount will be whatever the divorce judge thinks is appropriate.

The best factor to lean upon in order to minimize your maintenance payment is 750 ILCS 5/504(a)(2), “the needs of each party.”

Your argument should minimize your spouse’s needs and maximize your needs. Your evidence will be your and your spouse’s financial affidavit where both of you have detailed your expenses with specificity. Avoiding maintenance in an Illinois divorce may be as simple as proving that your ex-spouse doesn’t need maintenance.

How To Avoid Paying Maintenance In Illinois Completely

If your income is 50% higher than your spouse’s, you need to expect to pay some kind of court-ordered maintenance. The only question is the amount and the length of maintenance.

Neither party needs to follow the Illinois maintenance statute…if they agree not to follow the statute.

“If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114,

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children” 750 ILCS 5/502(a)

Courts cannot get between you and your spouse in coming to an alternative arrangement regarding maintenance.

“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

Inevitably, the possible maintenance payor awards the other party a greater share of the marital estate in exchange for the other party waiving maintenance.

The guarantee of money today versus the possibility of money tomorrow from someone who actively dislikes you is a very tempting prospect for most possible maintenance receivers.

A lump-sum payout in lieu of maintenance is a massive tax savings to the possible maintenance payor.

Transfers of property incident to a divorce are not taxable events.

“No gain or loss shall be recognized on a transfer of property from an individual to (or in trust for the benefit of)

a former spouse, but only if the transfer is incident to the divorce.” 26 U.S.C. Sec. 1041(a)(2)

But maintenance payments are taxable to the maintenance payor. Maintenance payments are just another expense of life with no deduction since January 1, 2019.

A maintenance payment will not reduce the maintenance payor’s tax burden and the maintenance receiver will not be expected to pay taxes on their maintenance payments. So, the maintenance payor should be inclined to make a property settlement with their spouse who will incur no tax penalty for receiving such a settlement.

Another way to reduce or eliminate maintenance is to offer to get a life insurance policy where your ex-spouse is the beneficiary.

Your capacity to pay maintenance in the future may be uncertain but one thing is certain, eventually, you are going to die. Your spouse may agree to let you enjoy your money now if they can enjoy your money after your death.

“With respect to existing life insurance, provided the court is apprised through evidence, stipulation, or otherwise as to level of death benefits, premium, and other relevant data and makes findings relative thereto, the court may allocate death benefits, the right to assign death benefits, or the obligation for future premium payments between the parties as it deems just.” 750 ILCS 5/504(f)(1)

Reducing Maintenance After You Are Divorced

If your spouse won’t come to an agreement to waive maintenance from you and the court has ordered maintenance, you are not obligated to pay maintenance indefinitely. Your income can change…and so will the maintenance.

“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)

“[T]he court shall consider the applicable factors set forth in subsection” the court shall consider the applicable factors set forth in subsection:

“[A]ny change in the employment status of either” 750 ILCS 5/510(a-5)(1)

If your income changes to an extent that maintenance should be reduced based on whether the income decrease was done “in good faith.”

“Employment changes that are voluntary must be made in good faith and not prompted by a desire to avoid maintenance obligations.” In re Marriage of Waldschmidt, 608 NE 2d 1299 – Ill: Appellate Court, 4th Dist. 1993

“Whether a spouse may voluntarily retire or cut back on his income depends on the circumstances of each case. Relative factors are the age, health of the party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement and the ability of the other spouse to provide for himself or herself.” In re Marriage of Smith, 396 NE 2d 859 – Ill: Appellate Court, 2nd Dist. 1979

If your income decreases and your spouse’s income increases, you may find that guidelines maintenance suddenly becomes your friend as guidelines maintenance disappears.

“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)

If you do the math, the moment you earn 150% or less than your ex-spouse’s income, you are no longer obligated to pay your ex-spouse maintenance (after a proper motion to modify has been heard).

The point of a divorce is to dissolve a relationship. Maintenance payments just continues the relationship and all the same financial dynamics that made both people miserable. If you would like to avoid paying maintenance in your Illinois divorce, contact my Chicago, Illinois family law firm to schedule a free consultation with an Illinois divorce attorney.