Non-guidelines alimony in Illinois

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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Non-Guidelines Maintenance In An Illinois Divorce

Non-guidelines alimony in Illinois

In an Illinois divorce, there is a presumption that a supporting spouse or a spouse who made significantly more than the other spouse will have to pay the other spouse maintenance (formerly known as alimony). The amount of that maintenance is then determined by a formula called “guidelines maintenance”

What Is 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 two separate formulas for the amount of maintenance paid and the length of time that maintenance will be paid.

The Illinois Marriage and Dissolution of Marriage Act “creates a formula for calculating maintenance based on the gross income of the parties and the length of the marriage.”In re Marriage of Cole, 58 NE 3d 1286 – Ill: Appellate Court, 5th Dist. 2016

Guidelines maintenance is calculated in an Illinois divorce using a very basic 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)

The vast majority of divorce cases in Illinois will have their maintenance amount (if any) determined by this two-part formula.

The strict mathematical nature of the formula allows a quick “rule of thumb” to determine if maintenance will be paid: If one spouse makes more than 150% of the other spouse’s net income…they are likely to pay maintenance.

But, if a spouse does pay guidelines maintenance…it will never be an amount greater 40% of the parties combined net incomes.

So, the guidelines maintenance will never be the full amount from the first part of the formula (33% net less 25% net) unless the paying spouse’s income is 300% or more of the net income of the paid spouse.

Guidelines maintenance also has a guidelines duration of how long the maintenance payor must pay that guidelines maintenance amount.

Guidelines maintenance’s duration “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)(B)

This “one size fits all” calculation of support is extremely restrictive and does not consider need or ability to pay in any nuanced fashion.

It has been argued that the real purpose of guidelines maintenance is “to provide courts with guidelines to limit inconsistencies in maintenance awards across the state, which, in the past, varied widely in the amounts and durations of maintenance ordered for people with similar incomes and similar periods of marriage.” In re Marriage of Cole, 58 NE 3d 1286 – Ill: Appellate Court, 5th Dist. 2016

Consistency is a not a greater virtue than justice. It can be argued that “[L]imitation[s] actually undermine[] the stated goal of providing consistency and rationality to the civil justice system.” Best v. Taylor Mach. Works, 689 NE 2d 1057 – Ill: Supreme Court 1997

If you want to pay less than the guidelines maintenance amount or you want your ex-spouse to pay more than the guidelines maintenance amount for a period which differs from the statute, you must argue for a non-guidelines maintenance award.

Non-Guidelines Maintenance In An Illinois Divorce

“To be clear, section 504(b-1)(1) 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

“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 “relevant factors” that must be considered before awarding non-guidelines maintenance are as follows: “(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)

Non-guidelines maintenance can be ordered based on any of the above 14 factors (which includes “any other factor”). In theory, an Illinois divorce court can order non-guidelines maintenance in any case…for any reason.

Best practices would be to focus on one particular factor and present evidence of that factor to the court which forces the court to consider that factor with the hopes of abandoning the guidelines because of that factor.

Illinois divorce courts rarely deviate from guidelines maintenance unless the reason is crystal clear. One crystal clear and statutorily acceptable reason to deviate from guidelines maintenance is if the maintenance and the child support are greater than 50% of the payor’s income.

“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)

Additionally, a combined gross income of $ 500,000 between the two parties is sufficient for a court to deviate from the guidelines.

“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 an Illinois divorce judge does deviate from guidelines maintenance he or she must state the reasons for doing so in writing.

[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; and…the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/503(b-2)(2),(3)

The requirement that a court make findings to justify a departure from guidelines maintenance is mandatory for a deviation in amount or duration of guidelines maintenance.“[C]ourts are required to make these findings if they depart from either aspect of the [maintenance] guidelines.” IN RE MARRIAGE OF HARMS AND PARKER, 103 NE 3d 979 – Ill: Appellate Court, 5th Dist. 2018

Modification Of Maintenance And Guidelines Amounts In An Illinois Divorce

Before 2016, there was no guidelines maintenance. All maintenance awards were based on the “relevant factors.” After 2016, a guidelines maintenance formula was established of 30% gross income of the payor less 20% gross income of the payee.

In 2019, after maintenance became taxable to the payor the formula was changed again to the reflect the current calculation (33% net income less 25% net income).

Maintenance awards from prior to 2019 may be modified…but they can’t use the current maintenance guidelines in the new maintenance order.

Maintenance “guidelines are not applicable in proceedings to modify preexisting maintenance orders.” IN RE MARRIAGE OF HARMS AND PARKER, 103 NE 3d 979 – Ill: Appellate Court, 5th Dist. 2018

An Illinois divorce court will have to apply the old “relevant factors” test in order to determine a new, more appropriate maintenance amount. This lack of mathematical certainty provides no guarantee to know whether modifying maintenance will even be worth the effort.

Maintenance awards after 2019 can be modified to either extend the duration or terminate the maintenance entirely.

“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)

Maintenance amounts may be modified or terminated after 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)

The statute is not clear that a court must apply guidelines after a petition to modify maintenance…but the court must explain how it came to the new modified maintenance amount.

“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)

In a maintenance modification action of a post-2019 maintenance award, expect an Illinois court to say “I applied the guidelines”…unless there’s a good reason not to apply guidelines…which is exactly how initial maintenance orders are determined.

If you’re trying to break the shackles of Illinois guidelines maintenance or you are trying to enforce Illinois guidelines maintenance with mathematical certainty, contact my Chicago, Illinois divorce firm to speak with an experienced Chicago divorce attorney.