Enough 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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Terminating Maintenance After An Illinois Divorce

Enough Alimony in Illinois

Maintenance (formerly known as alimony) is a funny thing in Illinois.  If you aren’t awarded maintenance at the finalization of your Illinois divorce, you can never ask for it in the future.  But, if you are receiving maintenance, sooner or later, that alimony order will end.  So, how does maintenance (formerly known as alimony) terminate in Illinois

What Is Maintenance In Illinois?

In Illinois, maintenance used to be called alimony and everyone knew what the concept of paying your spouse after a divorce was by its traditional name, “alimony”.  Now, Illinois residents use the word maintenance to describe paying their ex-spouse support and it sounds like you are taking a car into the shop.

If you’re reading this, you probably already know that the rules of setting maintenance in Illinois are exceedingly complicated. 

Before 2016, judges just decided what maintenance should be based on their own personal judgment.  First, the judge would have to determine if the maintenance requesting spouse is even eligible for maintenance based on fourteen difference factors. Then, the judge in one courtroom might award one amount of maintenance and the judge in the next room would order another.

After 2016, The divorce attorneys and judge had to calculate the maintenance payor’s gross income at 30% less the maintenance payee’s income at 20%. The maintenance payee’s income could not exceed 40% of the total. This award was almost always made a whole number on a regular basis. For example, “Husband to pay Wife $500 a month in maintenance.”

In 2016, maintenance was tax-deductible to the payor.  After the tax reform of 2019 maintenance became is tax-deductible to the payee. So, Illinois had to change its maintenance law again.

After 2019, The divorce attorneys and judge had to calculate the maintenance payor’s net income at 33% less the maintenance payee’s income at 25%. But, the maintenance payee’s income could not exceed 40% of the total.  Again, a round number on a regular basis is usually selected. For example, “Wife is to pay husband $ 200 bi-weekly via direct deposit as maintenance.

The length of maintenance payments was/is then calculated based on how long the marriage was.

When Does Maintenance Stop In Illinois?

Most maintenance has an automatic termination date which should be stated specifically in your Marital Settlement Agreement

Typically, a Marital Settlement Agreement will say something like: “WIFE shall be awarded maintenance in the amount of $_________ per month for a total of _______ years pursuant to guidelines. The amount and term of the maintenance shall be non-reviewable and non-modifiable until DATE.”

You’ll notice this clause of the Marital Settlement Agreement states how long the maintenance lasts, how the length of maintenance was calculated (pursuant to guidelines) and the exact date maintenance stops.  This way, there is no question how we arrived at the length of the maintenance and when the maintenance actually stops.

If the maintenance termination clause of your Marital Settlement Agreement is not this specific, you’re going to have to point to the Illinois law that existed on the date your Marital Settlement Agreement was entered.

Divorces before 2015 allowed judges to determine the duration of the maintenance based on their own judgment.  If no duration or end date is listed, you must assume the duration of the maintenance is permanent.

After July 1, 2015, the Illinois maintenance duration formula got a little more complicated.

Divorces finalized post-2019 use this formula to determine the guidelines’ duration of the maintenance awarded:

  • 0-5 years of marriage x 20% of the total length of the marriage.
  • 5-10 years of marriage x 40% of the total length of the marriage.
  • 10-15 years of marriage x 60% of the total length of the marriage.
  • 15-20 years of marriage x 80% of the total length of the marriage.
  • 20 or more years of marriage, an Illinois divorce. court had discretion to award the recipient spouse permanent maintenance or a duration at least equal to the length of the parties’ marriage.

After January 1, 2019 the Illinois maintenance duration got a lot more complicated.

Maintenance “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)(1)(B)

How Do You Terminate Maintenance Early In Illinois?

The Illinois Statute lays out several scenarios where you can end maintenance well in advance of the scheduled maintenance termination date or the prescribed statutory termination date.

“[T]he obligation to pay future maintenance is terminated upon the death of either part” 750 ILCS 501(c)

“[T]he obligation to pay future maintenance is terminated upon…the remarriage of the party receiving maintenance” 750 ILCS 501(c)

  • Cohabitation.

“[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 501(c)

The exact moment when maintenance stops for each of these incidents are, respectfully, the date of death, “The obligor’s obligation to pay maintenance…terminates by operation of law on the date the oblige remarries” and An obligor’s obligation to pay maintenance or unallocated maintenance terminates by operation of law on…the date the court finds cohabitation began.”750 ILCS 501(c)

The date of death and the date of remarriage are both very easy to determine. But, how do you determine “when cohabitation began?”

How Does Cohabitation Terminate Maintenance In Illinois?

The Illinois statute does not go into depth as to what qualifies as a “cohabitation” for the purposes of terminating maintenance.

“[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 501(c)

When a statute isn’t clear enough, the appellate courts must step in and make up a rule that fits the situation. 

The Supreme Court of Illinois’ rule will always be the best judicial rule.

“[A}n intimate dating relationship is not a de facto marriage and, therefore, is not a ground upon which to terminate maintenance” In re Marriage of Bates, 212 Ill. 2d 489, 524 (2004)

So, the Supreme Court of Illinois tells us what cohabitation isn’t, an intimate relationship, but the Illinois Supreme Court doesn’t tell us exactly what cohabitation is. Therefore, we must turn to a lower Illinois appellate court for guidance.

There’s a relative recent rule from an Illinois appellate court that cohabitation is determined “by the totality of the circumstances.”

“Courts should look for signs of mutual commitment and permanence….[C]ourts must also look to the totality of the circumstances to determine whether the new relationship functions practically and economically in a marriage-like way and, if not, whether there is a reasonable explanation as to why it does not (such as each partner’s having an individual abundance of resources or estate-planning goals).” Miller v. Miller, 2015 IL App (2d) 140530 (Ill. App. 2015)

Totality of the circumstances means “the more arguments the better.”  So, just list all the reasons your spouse should be considered cohabitating with another person on a resident, continuing conjugal basis. It’s your duty to prove that.

How do Illinois divorce lawyers in Illinois prove that two people are cohabitating? We hire a private investigator to photograph the new boyfriend/girlfriend’s car outside their house at 11 PM and then again at 5PM over two weeks.  If this couple is together more than half the time, that is probably cohabitating under the totality of the circumstances.

How do Illinois divorce lawyers advise their clients to disprove cohabitating?  Well first of all, it’s not the duty of the maintenance receiver to disprove cohabitation, it’s the duty of the person trying to terminate maintenance.  Still, it can’t hurt to take preventative measures.

At my firm, we tell our clients not to spend the night over too often, to never share finances and to park their car a block or two away from their new boyfriend/girlfriend’s house for good measure.  But, honestly, life is short. If you’re in love, move in together and forget about maintenance from your ex.

What If You Cannot Terminate Your Maintenance In Illinois?

If you cannot terminate an Illinois maintenance order, you can still do the second-best thing…reduce an Illinois maintenance order.

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)

There are so many reasons for a substantial change in circumstance.  But 90% of the time, the maintenance payor’s income has gone down or the maintenance payee’s income has gone up.

A court can review “the increase or decrease in each party’s income since the prior judgment or order from which a review, modification, or termination is being sought” 750 ILCS 5/501(a-5)(7)

In addition to this one big, fat factor for reducing maintenance in Illinois there are a few others:

“(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) 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;

(8) 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

(9) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/501(a-5)

The statute doesn’t exactly say how maintenance should be reduced.  So, don’t be afraid to suggest something other than the current 33% net minus 25% standard…if the numbers help.

But, don’t be afraid to invoke the 40% ceiling rule. “Maintenance…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)

If you invoke the 40% rule, you may very well terminate maintenance with your motion to modify maintenance.

If you’re modifying a maintenance order that was entered before January 1, 2019, there is a rule, however.

“Modification of maintenance orders entered before January 1, 2019 that are and continue to be eligible for inclusion in the gross income of the payee for federal income tax purposes and deductible by the payor shall be calculated by taking 30% of the payor’s gross annual income minus 20% of the payee’s gross annual income, unless both parties expressly provide otherwise in the modification order. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.“ 750 ILCS 5/504(b-1)(A)

Tax Issues If You Reduce Maintenance In Illinois

If the original maintenance order was entered into before January 1, 2019 you can stick with the pre-2019 payment percentages UNLESS both parties agree otherwise.

“Modification of maintenance orders entered before January 1, 2019.  For any order for maintenance or unallocated maintenance and child support entered before January 1, 2019 that is modified after December 31, 2018, payments thereunder shall continue to retain the same tax treatment for federal income tax purposes unless both parties expressly agree otherwise and the agreement is included in the modification order.”750 ILCS 5/504(b-5)

So, you can still deduct your maintenance payments in Illinois under the old law unless you and your ex agree to switch the right to that tax deduction.

Consult your accountant to determine if maintaining the 30% gross minus 20% gross rule and NOT paying taxes is better than 33% net minus 25% net. 

If you’d like to end or terminate your maintenance payments from your Illinois divorce, contact my Chicago, Illinois divorce law firm to learn more about all of your options.