Posted on January 16, 2021

Standard Of Living And Maintenance In An Illinois Divorce

Most of people’s understanding of divorce comes from television and movies…which are made in California. Therefore, we often parrot back Californian law that has little to no impact in states such as Illinois.

One Californian legal concept is that the standard of living to which a spouse was accustomed to will determine that spouse’s alimony (called “maintenance” in Illinois).

That is not how it works in Illinois.  But, standard of living can still be a considered factor in an Illinois divorce.

How Is Maintenance Calculated In Illinois?

In Illinois, before any award of maintenance can be made, “[t]he court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including… the standard of living established during the marriage” 750 ILCS 5/504

It is hard to see how “the standard of living established during the marriage” could be considered to obviate the need for any maintenance award whatsoever. Could a person say “we always lived in a mud hut and ate from the garden, therefore my spouse doesn’t need anything?” I suppose they could say that but I doubt a judge would adopt an argument like that. My point is that standard of living is never a reason to NOT pay or receive maintenance.

Illinois uses a formula for determining maintenance “if the combined gross annual income of the parties is less than $500,000…shall be in accordance [with guidelines]” 750 ILCS 5/504(b-1)(1)

That guidelines maintenance amount shall be “calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. 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 5/504(b-1)(A)(1)

A combined income greater than $ 500,000 shall allow for non-guidelines maintenance. In such cases, no formula is used and, instead, the “Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors” 750 ILCS 5/504(b-1)(2)

The “relevant” factors the non-guidelines maintenance statute refers to are sure to include “the standard of living established during the marriage.”

When an Illinois divorce court does make a ruling regarding maintenance, the court must explain how it came to that decision. “In each case involving the issue of maintenance, the court shall make specific findings of fact, as follows: (1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section;” 750 ILCS 504(b-2)

One of the factors in subsection (a) is “the standard of living established during the marriage.”

So, only when the guideline maintenance formula is not being applied will the standard of living be considered in determining initial maintenance.

“The court is not required to order maintenance in accordance with the statutory guidelines.” In re Marriage of Hamilton, 2019 IL App (5th) 170295

So, if your goal is to maintain your standard of living, you should press the court to not follow the maintenance guidelines and ask the court to docus on “the standard of living.”

One factor is all the court needs to base its decision upon. “The court is not required to give the factors equal weight ” In re Marriage of Reynard, 344 Ill. App. 3d 785, 790 (Ill. App. Ct. 2003)

How Does Standard Of Living Impact A Maintenance Award In An Illinois Divorce?

When the standard of living is considered, Illinois divorce courts should treat that standard of living as a floor for maintenance so long as the payor is able to pay to maintain their spouse’s standard of living.

“[M]aintenance is designed to allow the recipient spouse to maintain the standard of living enjoyed during the marriage.” In re Marriage of Micheli, 2014 IL App (2d) 121245,

An Illinois divorce court looks not long at a spouse’s “current needs but also how much maintenance was necessary to allow her to enjoy a standard of living comparable to that she enjoyed during the marriage.” In re Marriage of Brankin, 967 NE 2d 358 – Ill: Appellate Court, 2nd Dist. 2012

“The reasonable needs of the party seeking maintenance are to be measured by the standard of living the parties enjoyed during the marriage” In re Marriage of Keip, 332 Ill.App.3d 876, 880, 266 Ill. Dec. 157, 773 N.E.2d 1227 (2002)

“‘A spouse should not be required to lower the standard of living established in the marriage as long as the payor spouse has sufficient assets to meet his [or her] needs and the needs of his [or her] former spouse.’ ” In re Marriage of Shen, 2015 IL App (1st) 130733, ¶ 87 (quoting 2020 IL App (2d) 190480-U – 27 – In re Marriage of Walker, 386 Ill. App. 3d 1034, 1044 (2008))

However, if the maintenance receiver has been allocated marital and/or non-marital assets which would allow them to support themselves, that shall not be an excuse to waive maintenance or reduce maintenance below the full amount to match the standard of living established in the marriage (if the payor has the capacity to pay).

“A party should not be required to expend [his or] her assets in order to live at something approximating the standard of living enjoyed during the marriage.” In re Marriage of Hamilton, 2019 IL App (5th) 170295

Standard of living accounts for a parties’ needs. That party’s ability to pay for their own needs is also accounted for. There are no strict rules regarding the ability or capacity of a party to provide for their own needs, however. “We cannot assume that the petitioner is able to support herself in the marital lifestyle simply because her net employment and investment income exceeds 50% of the parties’ total disposable income during the last years of marriage. Living apart costs most couples more than living together” In re Marriage of Krupp, 207 Ill. App. 3d 779, 794 (Ill. App. Ct. 1990)

Maintenance, for almost everyone, doesn’t last forever. Maintenance is reviewable upon a substantial change of circumstances or can be reserved for review at a later date.

A divorced party’s standard of living will not be maintained in perpetuity for its own sake.

“[T]here is no requirement in the law that the parties are to permanently maintain the same standard of living.” Marriage of Haas, 215 Ill.App.3d 959, 964, 158 Ill.Dec. 983, 574 N.E.2d 1376, 1379 (1991)

The purpose of reviewable maintenance is to allow an Illinois divorce court to reserve the final length and amount of an award of maintenance “to encourage a spouse to become self-sufficient while providing the court with an opportunity to review the award at the end of a fixed period to determine what efforts the spouse has made toward achieving this objective and whether those efforts have been successful.” In re Marriage of Pearson, 236 Ill. App. 3d 337, 348 (1992)

“Financial independence [does]not mean the ability to merely meet minimum requirements but entailed the ability to earn an income that would provide a standard of living similar to that enjoyed during the marriage.” In re Marriage of Selinger, 814 NE 2d 152 – Ill: Appellate Court, 4th Dist. 2004

Maintenance can be reviewable but the standard of living enjoyed during the marriage should be the floor at which maintenance can be set.

The “optimal goal of the maintenance act is for the dependent former spouse to become financially independent. However, under circumstances involving former spouses with grossly disparate earning potentials, this goal is often not achievable in light of the dependent former spouse’s entitlement to maintain the standard of living established during the marriage.” In re Marriage of Lenkner, 241 Ill.App.3d 15, 25, 181 Ill.Dec. 646, 608 N.E.2d 897, 904 (1993).

Maintenance can be cut off after the standard of living enjoyed during the marriage is achieved independently by the maintenance receiving ex-spouse…but not before.

“This goal, however, must be balanced against the realistic appraisal of the likelihood the spouse will be able to support herself in a reasonable approximation of the standard of living established during the marriage. Limited maintenance is appropriate only where the spouse is employable at an income that would provide the approximate standard of living enjoyed during the marriage.” In re Marriage of Selinger, 814 NE 2d 152 – Ill: Appellate Court, 4th Dist. 2004 (Citations Omitted)

Keep in mind that “the standard of living enjoyed during the marriage” is but one factor the courts can and will consider when determining both the amount and length of maintenance when not following guidelines in an Illinois divorce case.

Child Support And Standard Of Living In Illinois

In Illinois, child support is also determined by a formula which is based on both parent’s incomes.

An Illinois divorce court has the option of bypassing the formula and awarding child support based on “the best interests of the child and evidence which shows relevant factors including…the standard of living the child would have enjoyed had the marriage or civil union not been dissolved” 750 ILCS 505(a)(2)(C)

One can imagine a very wealthy parent having to provide additional non-guidelines child support to a much less wealthy parent so that the children can enjoy similar lifestyles at both parents homes.

“A child is not expected to have to live at a minimal level of comfort while the noncustodial parent is living a life of luxury.” In re Marriage of Bussey, 108 Ill. 2d 286, 297, 483 N.E.2d 1229, 1234 (1985) .

The “the standard of living the child would have enjoyed had the marriage or civil union not been dissolved” will also be considered when allocating the college expenses of a child and supporting a disabled child who has passed the age of majority.

Standard Of Living And Attorney’s Fees

At the beginning of a divorce, one of the first filings is usually a motion for temporary relief to pay for temporary maintenance, child support and initial attorney’s fees.  At this initial stage of the divorce, the parties’ financial situation is unknown beyond what the have each provided in their respective financial affidavits.

Because of this haziness as to the parties’ assets and incomes, the court is empowered to look to their standard of living when making awards for interim attorney’s fees.

“In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable…the standard of living established during the marriage” 750 ILCS 5/501(c-1)

There are so many factors that must be considered when formulating a strategy for an Illinois divorce. It’s important to utilize all of them to your advantage. If you’d like to discuss strategy, you can contact my Chicago, Illinois family law office to speak with an experienced Chicago divorce lawyer.

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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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