More about This Topic
Temporary Maintenance In An Illinois Divorce
Earnest Hemingway was once asked, “How’d you go bankrupt?” Earnest replied, “Two ways, slowly and then all at once.” That’s a lot like how a divorce works. Years of resentment and planning becomes tactics and strategy once the divorce is finally filed. Often, one spouse is left without support yet the discovery deadlines necessary to determine both spouse’s incomes are months away. In Illinois divorce cases, that spouse needs temporary maintenance (formerly known as alimony) in their Illinois divorce.
Temporary Motions In Illinois Divorces
I tell my clients that the Illinois divorce system is fair but it takes a LONG time. This is because seasoned divorce attorneys will not settle a case and Illinois divorce judges will not make final decisions until all of the relevant discovery is exchanged.
Discovery is the financial documents that prove what a party to a divorce earns, owns and owes. Even in the most simple cases, this process takes months until the discovery is deemed sufficiently adequate by both sides to finalize the divorce, distribute assets and award maintenance (formerly known as alimony)
The way to deal with the long wait for justice in an Illinois divorce is to file the necessary temporary motions to maintain each spouse while the discovery process ensues.
The Illinois Marriage and Dissolution of Marriage Act provides for temporary motions that require very little initial discovery and evidence and can be heard very quickly by an Illinois divorce judge.
“Either party may petition or move for
“temporary maintenance or temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested. “ 750 ILCS 5/501(a)
The statute doesn’t make a distinction between child support and maintenance for temporary purposes. They know you need the money now.
What Is Required For A Temporary Motion For Maintenance In Illinois?
The statute then goes on to outline exactly what is required when filing a motion for temporary maintenance. In addition to the actual motion for temporary maintenance you must also exchange “[o]ne form of financial affidavit, as determined by the Supreme Court, shall be used statewide. The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501(a)
So, the entire temporary motion for maintenance is based on your financial affidavit and supporting documents and your spouse’s financial affidavit and supporting documents. This is sensitive, private information and will not be filed with the court. The financial affidavit and supporting documents will only be exchanged between the two parties and presented to the judge at the time of the hearing.
“Unless the court otherwise directs, any affidavit or supporting documentary evidence submitted pursuant to this paragraph shall not be made part of the public record of the proceedings but shall be available to the court or an appellate court in which the proceedings are subject to review, to the parties, their attorneys, and such other persons as the court may direct.“ 750 ILCS 5/501(a)
What stops either spouse from just lying on their financial affidavit and thus receiving more maintenance than they should or pay less than they should? There are severe penalties for lying on an Illinois financial affidavit.
“Upon motion of a party, a court may hold a hearing to determine whether and why there is a disparity between a party’s sworn affidavit and the supporting documentation. If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court shall impose significant penalties and sanctions including, but not limited to, costs and attorney’s fees;”750 ILCS 5/501(a)
How Does An Illinois Divorce Court Determine Temporary Maintenance?
In setting temporary maintenance, Illinois divorce courts have “wide latitude.” In re Marriage of Greenberg, 102 Ill. App. 3d 938, 941, 429 N.E.2d 1334, 1337 (1981)
An Illinois divorce judge understands that temporary motions are…temporary. The judge can make an order regarding maintenance today “without prejudice” meaning that the judge can just reverse or modify their decision once new information comes to that judge’s attention. Because of the temporary nature of everything, an Illinois divorce judge will make their decision very quickly…in a literally “summary” fashion.
An Illinois divorce judge is empowered to do a “summary hearing” for temporary support motions.
“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” 750 ILCS 5/501(a)
A summary hearing is merely the Illinois divorce judge comparing the two financial affidavits and determining support exclusively off of that information. A financial affidavit includes the divorcing parties’ respective incomes which decides 90% of maintenance awards. A financial affidavit also includes the parties’ expenses which validate the need for maintenance.
You don’t have to do the hearing in this summary fashion if you have good cause. The alternative to a summary hearing is an evidentiary hearing. An evidentiary hearing is when you formally put witnesses on the stand and submit evidence like you see in the movies. Example: “At this time I seek to admit exhibit A into evidence, objection, etc.”
“An evidentiary hearing may be held upon a showing of good cause” 750 ILCS 5/501(a)
So, if you know already that your spouse’s financial affidavit is full of errors, lies and omissions, you may want to request a full evidentiary hearing so that you have the opportunity to challenge that financial affidavit.
The only downside to an evidentiary hearing is that it takes longer and thus an Illinois divorce judge will have to wait weeks or months until there’s an open afternoon in the judge’s schedule in order to hear your evidentiary hearing.
How Is The Amount Of Temporary Maintenance Determined?
The Illinois statute that permits temporary maintenance does not specify exactly how to determine said maintenance. The statute only advises the judge to just consider the financial affidavit and supporting documents.
Typically, Illinois divorce judges and divorce practitioners use the same formula to determine temporary maintenance as they do permanent maintenance.
Permanent maintenance is determined using a very specific formula.
In Illinois maintenance is “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)
Remember, it’s all temporary so the amount is not that important. Sooner or later the true income of your spouse will be discovered and your maintenance will be properly adjusted and you will even be given a credit for the maintenance you should have gotten. Sometimes it is better to just take what you can get now and collect the balance in the future.
If you’re not working at the time of your divorce, the court may impute income to you in order to determine what you should be making and use that amount in the calculation of maintenance. This is not required and can be argued against, especially on a temporary basis.
If you have a motion for temporary maintenance AND child support, your child support amount will be totaled after your maintenance amount is included as part of your income.
How Long Does Temporary Maintenance Last?
Temporary maintenance lasts as long as the divorce lasts. When the divorce is finalized, the final maintenance amount shall be calculated and entered.
All temporary orders “[terminate] 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)
Your final maintenance order will only be for a set amount of time depending on the length of your marriage (again, a complicated equation). Your temporary maintenance will cut into that final ordered length of maintenance.
“In the discretion of the court, any term of temporary maintenance paid by court order under Section 501 may be a corresponding credit to the duration of maintenance” 750 ILCS 5/504(b-1)(B)(1.5)
What About All My Other Expenses?
Even if you’re collecting a full 33% of your spouse’s net income, you probably still have more than 1/3 of the expenses you had during your marriage. You still have a mortgage, rent, credit cards, car payments, etc.
These need to be paid as well and your temporary motion for maintenance should ask that these ongoing mutual expenses be paid by whomever has the capacity to pay them.
An Illinois divorce court can order “other appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 ILCS 5/501(a)(3)
The payment of ongoing marital expenses is not done via formula. If you’re living in the house and collecting significant maintenance, you may be held responsible for the entire rent or mortgage. There’s no formula so you may be held responsible for a portion of the marital expenses based on your maintenance award. Alternatively, the court may find that the primary earner in the marriage is responsible for all the expenses. There is no rule about who pays household expenses during a divorce in Illinois.
This is where things get really murky for everyone involved. Uncertain temporary orders that, technically, have no end date encourage a quick settlement of all remaining matters. Otherwise the level of tension and anxiety becomes unbearable for all parties involved.
If you’re curious about what temporary maintenance (formerly known as alimony) you are entitled to or will have to pay, please contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.