Maintenance (formerly known as alimony) is awarded for a period of time after the divorce. Maintenance can be for just a few months or maintenance can be permanent in Illinois.
Illinois law provides that maintenance (formerly known as alimony) is awarded “For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.” 750 ILCS 504(b)(1)(b)
Furthermore, permanent maintenance orders are “appropriate where it is evident that the recipient spouse is either unemployable or employable only at an income that is substantially lower than the previous standard of living.” In re Marriage of Micheli, 2014 IL App (2d) 121245, In re Marriage of Van Hoveln, 2018 IL App (4th) 180112
“[P]ermanent maintenance is generally considered appropriate in circumstances where a spouse has devoted significant time to raising a family in lieu of pursuing a career.” In re Marriage of Heroy, 385 Ill. App. 3d 640, 652 (Ill. App. Ct. 2008)
Permanent maintenance may actually be required based on the facts of the divorce case in Illinois.
For example, In re Marriage of Kerber, 215 Ill. App. 3d 248, 253 (Ill. App. Ct. 1991) the court found that in “[a]lmost every one of the statutory factors indicates this was a classic case for the award of permanent maintenance. The parties had a marriage of long duration. [the wife] has limited resources to meet her needs independently. She has only a high-school education, so the time needed for her education or training to enable her to seek employment somewhere other than, e.g., a fast food restaurant, will be significant. [the wife] suffers from debilitating migraine headaches, trigeminal neuralgia, and a painful ankle. Because of the agreed-upon division of labor during her marriage, [the wife] stayed home and raised the children, and is thus attempting to enter the work force relatively late in life, with limited skills. [The husband], however, because of the division of labor that he requested, was able to gain marketable skills which enable him to earn over $34,000 working for the Secretary of State.”
Permanent maintenance was also required in a case where “1) there is a significant disparity in the present and future earning capacities of the parties; (2) [the husband] had the opportunity to continue and advance his career during the marriage because of [the wife’s] contributions to the family; (3) [the wife] will not be able to enjoy a standard of living similar to the one she enjoyed during the marriage; (4) she will be forced to sell her limited assets to meet her needs; (5) [the husband] is able to contribute to [the wife’s] needs while still meeting his own; and (6) the 29-year marriage was of significant duration.” In re Marriage of Drury, 317 Ill. App. 3d 201, 210 (Ill. App. Ct. 2000)
What does “permanent” maintenance, exactly? Does it truly go on forever?
What about retirement? What if you become incapable of working as the years pass? What if you simply can’t work as much or earn as much as you did previously?
‘[P]ermanent’ does not mean everlasting; it means the obligation is for an indefinite period.” In re Marriage of Wojcik, 2018 IL App (1st) 170625
Section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act provides that “an order for maintenance may be modified or terminated only upon a showing of substantial change in circumstances.”
So, unless the marital settlement agreement explicitly states that maintenance is non-modifiable, the maintenance order is implicitly modifiable upon a showing of substantial change, regardless of whether the maintenance was labelled “permanent.”
“Trial judges cannot gaze into a crystal ball and foresee what the future holds for the parties. This explains why permanent maintenance is always modifiable or terminable should there occur a substantial change in circumstances.” Shen, 2015 IL App (1st) 130733
Section 510(a-5) then goes on to provide a list of factors for trial courts to consider in reviewing maintenance orders.
- Any change in the employment status of either party and whether the change has been made in good faith;
- The efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
- Any impairment of the present and future earning capacity of either party;
- The tax consequences of the maintenance payments upon the respective economic circumstances of the parties;
- The duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;
- The property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;
- The increase or decrease in each party’s income since the prior judgment or order form which a review, modification, or termination is being sought;
- The property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
- Any other factor that the court expressly finds to be just and equitable.
It is the burden of the person trying to modify or terminate the maintenance to prove that a substantial change has occurred.
Of course, the biggest substantial change in circumstances is the payee’s remarriage or entry into a “conjugal relationship” with another person. This almost always creates a complete termination of the payor’s maintenance obligations. Often, proving the conjugal relationship requires a private detective who records things like where the spouse or ex-spouse’s car was overnight.
The next step of the analysis is to consider whether the substantial change had been contemplated or not. Bernay 2017 IL App(2d) 160583 states that “the ‘change’ must not have been contemplated when permanent maintenance was ordered.” Therefore, if you get a permanent maintenance award and you’re close to retiring, a court may rule that you had, in fact, contemplated retirement when you entered the maintenance order. In contrast, an accident or medical incident that prevented you from working would obviously not have been contemplated. This case law rule regarding contemplations is likely modified by the new language in 750 ILCS 5/510 which states that “[c]ontemplation 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)
Outside of a substantial change in circumstances, the court can find that the parties had made some kind of out-of-court arrangement that modified the maintenance. For example, the wife stayed in the house without selling the house and the husband stopped paying the maintenance even though the marital settlement agreement instructed otherwise.
What if you stop working but still have assets? One case says the recipient of permanent maintenance is entitled to maintain “the standard of living established in the marriage as long as the payor spouse has sufficient assets to meet his needs and the needs of his former spouse”. In re Marriage of Walker, 386 Ill. App. 3d 1034, 1036 (Ill. App. Ct. 2008)
In conclusion, an award of permanent maintenance is not be lightly terminated. “A marriage is a partnership, not only morally but financially. Spouses are coequals and homemaker services must be recognized as significant when the economic incidents of divorce are determined. The former homemaker should not be penalized for having performed his or her assignment under the agreed upon division of labor within the family. It is inequitable upon dissolution to saddle the former homemaker with the burden on his or her reduced earning potential and to allow the wage-earning former spouse to continue in the advantageous position he or she reached through their joint efforts” In re Marriage of Lenkner, 241 Ill. App. 3d 15, 16 (Ill. App. Ct. 1993)
However, there is always hope for a modification as “even a spouse awarded indefinite maintenance has a good-faith obligation to work toward becoming self-sufficient.” In re Marriage of Dunseth, 260 Ill. App. 3d 816, 833 (1994)
Even if an order of maintenance is found to be permanent in duration, it may not be permanent in amount. It really depends on how the Marital Settlement Agreement was written. The Marital Settlement Agreement may stipulate that the length of maintenance may be permanent but that does not necessarily permanently lock in the amount of maintenance. A “court’s maintenance review is not limited to duration; it includes amount as well.” In re Marriage of Bonzani, 2023 IL App (3d) 220526-U
Contact my Chicago, Illinois law firm to determine if you can change or terminate your permanent maintenance order.
