Posted on January 13, 2024

Retroactive Maintenance In An Illinois Divorce

People who are married support each other. People who are divorced in Illinois end up supporting each other as well. Divorced people support each other via court order.

“In a proceeding for dissolution of marriage…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.” 750 ILCS 5/504(a)

Often the support is needed before the court has ordered the support. The party needing maintenance is still entitled to the maintenance they requested before the court actually ordered it. This past-due maintenance (formerly known as “alimony“) amount is referred to as “retroactive maintenance.”

Initial Maintenance Award And Retroactivity In An Illinois Divorce

When a divorce begins in Illinois, either party may request maintenance from the other party during the pending divorce.

“Either party may petition or move for

  1. Temporary maintenance or temporary support, accompanied by an affidavit , accompanied by an affidavit as to the factual basis for the relief requested.”  750 ILCS 501(a)(1)   

Temporary maintenance will not be awarded until a hearing is set. Hearings for maintenance are scheduled quickly and are considered by the court on a summary basis.

“Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other relevant documentation, except an evidentiary hearing may be held upon a showing of good cause.” 750 ILCS 5/501(a)(3)

Still, the initial hearing on temporary maintenance may occur months after the filing of the motion for temporary maintenance. What happens to the maintenance obligation during those months?

An Illinois divorce court has the option of awarding retroactive maintenance from the date of the filing of the petition for dissolution of marriage to the date of the order or from the date of the filing of the motion for temporary maintenance.

“[T]he circuit court [has] the statutory authority to award…maintenance and child support from the date of [the] request in the petition for dissolution” In re Marriage of Hochstatter, 2020 IL App (3d) 190132

Few maintenance receivers are truly cut off by their supporting spouse. The question is usually the amount of maintenance that is appropriate.

Illinois divorce courts should ensure that “appropriate credit [will be] given for the temporary payments” In re Marriage of Hochstatter, 2020 IL App (3d) 190132

Any initial maintenance award made before the divorce is finalized is a temporary order.

Temporary orders are extinguished by the final entry of the judgment of dissolution of marriage.

A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

Therefore, expect the retroactive maintenance on a temporary order to be delayed and awarded out of the final distribution of the marital estate (or for a credit to be given to a party based on the retroactive maintenance amount).

A ”temporary maintenance award should be funded by the parties’ marital estate.” In re Marriage of Heroy, 895 NE 2d 1025 – Ill: Appellate Court, 1st Dist., 3rd Div. 2008

“[T]he issue of maintenance is interrelated with the distribution of marital property. While recognizing that maintenance and distribution of property are considered together, they are clearly not the same thing. Maintenance is a sum of money payable to a spouse for his or her support. It is not the same as a distribution of property….In fixing a maintenance award, the court should consider the amount of property that it is distributing to each party. Nonetheless, maintenance and property distribution are two separate concepts which cannot be interchanged[.]” In re Marriage of Lees, 587 NE 2d 17 – Ill: Appellate Court, 3rd Dist. 1992

Before a divorce is finalized, retroactive maintenance is usually a consolation prize for the maintenance receiver. They could have used that money months ago!

For the maintenance payor, retroactive maintenance is just another bill that the marital estate pays at the end of the divorce.

Modifications of Maintenance and Retroactive Maintenance In An Illinois Divorce.

After a final maintenance award is made by an Illinois court, that maintenance award can be modified at any time if there are significant changes in the lives of either party.

“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)

Again, the modification of maintenance will not occur instantaneously. The party requesting modification will be granted their relief retroactively.

“The trial court is authorized to order retroactive payments pursuant to section 510(a) of the Act.” In re Marriage of Pratt, 17 NE 3d 678 – Ill: Appellate Court, 1st Dist., 2nd Div. 2014

The retroactive period does not begin from the moment of filing for a modification of maintenance, however. Rather, the retroactive period begins when the other party receives notice of the motion to modify maintenance.

[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification” 750 ILCS 5/510(a)

“[T]he earliest point to which retroactive modification of maintenance or support payments may be ordered is the date on which the nonmoving party receives `due notice’ from the moving party of the filing of the modification petition.”  In re Marriage of Hawking, 240 Ill.App.3d 419, 426, 181 Ill.Dec. 254, 608 N.E.2d 327 (1992)

The date of the retroactive order is not completely constrained by the date of filing. Some people are diligent enough to file motions to modify maintenance in anticipation of a job loss, retirement or other change in income.

“Maintenance should continue at its original rate until [the actual change occurs]” IN RE MARRIAGE OF O’HARA AND O’HARA, 2022 IL App (2d) 210593-U – Ill: Appellate Court, 2nd Dist. 2022 (Note: this is a non-citable Rule 23 case)

If the maintenance is being reduced or terminated, do not expect the party receiving maintenance to return any maintenance they had, in fact, received. People who get maintenance often do not have the resources to return the money they were, in fact, living on.

A court can “reject[] a retroactive application of the reduced maintenance amount, [if the court] find[s] it would be “catastrophic” to [the maintenance receiver]. In re Marriage of Burdess, 161 NE 3d 1123 – Ill: Appellate Court, 3rd Dist. 2020

Retroactive maintenance on a maintenance modification is almost always based on a reduction in maintenance. Therefore, the party trying to modify maintenance should demand a hearing as quickly as possible…because they probably will not get extra maintenance they paid back retroactively.

Interest On Retroactive Maintenance

When maintenance is owed in an Illinois divorce, there is usually statutory interest owed on that money that increases the amount owed.

“Any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as set forth in Section 505 of this Act.” 750 ILCS 5/504 (b-5)

Interest does not accrue to retroactive maintenance awards, however, because the award has not been made until the moment the order is entered.

“[R]etroactive maintenance award did not become due and cannot be considered unpaid until the point that the trial court entered the judgment modifying and extending respondent’s support obligation.” In re Marriage of Wojcik, 128 NE 3d 957 – Ill: Appellate Court, 1st Dist., 1st Div. 2018

Retroactive maintenance is like the Rolling Stones song “you can’t always get what you want/ but if you try sometimes/ you just might find/ you get what you need.”

The emphasis is on “try”. If you don’t ask…you don’t get.

If you would like to discuss retroactive maintenance with an experienced Illinois divorce attorney, contact my Chicago, Illinois family law firm today.

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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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