Posted on June 5, 2021

The Duty To Seek Employment After An Illinois Divorce

After a maintenance award is made in an Illinois divorce, there will be some language that will specify the amount and duration of maintenance.

The amount and duration of maintenance 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 example is as follows: “HUSBAND shall pay reviewable maintenance to WIFE Two Thousand Five-Hundred Dollars ($2500.00) per month for a total of one-hundred and twenty  (120) months, as and for maintenance.  This amount is based on the current statutory guidelines as set forth in 750 ILCS 5/504.  Said maintenance obligation shall be paid pursuant to a Notice to Withhold and paid commensurate with HUSBAND’s pay schedule. “

Maintenance is now set in amount and duration until something changes.

“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)

Typically, maintenance changes because the maintenance payor’s income has changed. Maintenance is rarely modified by the maintenance receiver. The maintenance receiver has little incentive to ask the court to reconsider the stream of income they receive from their former spouse.

This begs the questions of whether the maintenance receiver has any duty whatsoever to gain employment to offset their received maintenance or is the maintenance receiver allowed to sit back and enjoy their maintenance for the duration allowed?

On the one hand, the maintenance receiver needs the maintenance as awarded because the court considered their needs or they came to an agreement with their spouse regarding those needs.

On the other hand, maintenance usually expires at some point and the maintenance receiver will, presumably, have those same needs on the date of the maintenance’s expiration. So, they’d better figure out how to make some money before the maintenance expires.

Different Kinds Of Maintenance After An Illinois Divorce

The Illinois Marriage and Dissolution of Marriage Act outlines 3 kinds of maintenance designatiions.

“[T]he court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/5049(b-2)

“Fixed-term maintenance. If a court grants maintenance for a fixed term, the court shall designate the termination of the period during which this maintenance is to be paid. Maintenance is barred after the end of the period during which fixed-term maintenance is to be paid.”

Indefinite maintenance. If a court grants maintenance for an indefinite term, the court shall not designate a termination date. Indefinite maintenance shall continue until modification or termination under Section 510.

Reviewable maintenance. If a court grants maintenance for a specific term with a review, the court shall designate the period of the specific term and state that the maintenance is reviewable. Upon review, the court shall make a finding in accordance with subdivision (b-8) of this Section, unless the maintenance is modified or terminated under Section 510.” 750 ILCS 5/504(b-4.5)

An ex-spouse receiving any kind of maintenance above may have their maintenance modified.

“Review of maintenance. 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 in accordance with subdivision (b-1)(1)(A) of this Section.” 750 ILCS 5/504(b-8)

Reviewable maintenance is clearly modifiable. Indefinite maintenance (also known as “permanent maintenance“) provides for modifiability but what about fixed term maintenance?

If you want to maintain the fixed term maintenance, you argue that the term is fixed and the original judgment could have provided for modification if that’s what the parties intended.

If you want to modify a fixed term maintenance award you can cite the case law that unless the parties specified that it was non-modifiable, maintenance is always modifiable.

“Under Illinois law, all maintenance awards are reviewable.” In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, ¶ 23

“If the parties did not agree that maintenance was nonmodifiable, either in whole or in part, then maintenance was modifiable upon a substantial change of circumstances” In re Marriage of Dynako, 2020 IL App (1st) 192116

Rehabilitative Maintenance After An Illinois Divorce

While the Illinois Marriage and Dissolution of Marriage doesn’t specify a type of maintenance to be labelled rehabilitative maintenance, the statute does require a court to consider “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” 750 ILCS 5/504(a)(6)

Illinois case law further specifies and enshrines rehabilitative maintenance as a concept. After all, what is the point of any durational maintenance award if it is not rehabilitative?

“[C]ourts have found that awards of rehabilitative or time-limited maintenance may be appropriate under circumstances where the evidence indicates future employability” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

“The IMDA authorizes rehabilitative, or time limited, maintenance so that the spouse receiving the support has the incentive to use diligence in getting the training or skills necessary to attain self-sufficiency. This goal must be balanced against a realistic appraisal of the likelihood that the spouse receiving support will be able to support herself in some reasonable approximation of the standard of living established during the marriage especially where the marriage was of a long duration and the spouse has had a long absence from the labor market.” In re Marriage of Pearson, 603 NE 2d 720 – Ill: Appellate Court, 1st Dist., 3rd Div. 1992 (citations omitted)

Rehabilitative maintenance is any maintenance award which is not permanent.

“[R]ehabilitative maintenance, as opposed to permanent maintenance, is intended to provide the spouse with an opportunity to adjust to nonmarital life and provide [himself or] herself with independent means of support)” Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009

Rehabilitative maintenance is maintenance with a duration.

“[T]ime-limited maintenance is generally intended to motivate the recipient spouse to take steps necessary to attain self-sufficiency” In re Marriage of Kasprzyk, 128 NE 3d 1105 – Ill: Appellate Court, 4th Dist. 2019

At some point maintenance with a duration requires that the maintenance receiving spouse enable themselves to gain the skills necessary to be support themselves independently.

“As a general rule, limitations on maintenance awards serve the purpose of encouraging the recipient spouse to use diligence in procuring self-sufficiency.” In re Marriage of Kusper, 552 NE 2d 1023 – Ill: Appellate Court, 1st Dist. 1990

“Rehabilitative maintenance is designed to enable a spouse to develop the skills necessary to support themselves so that the former spouses may become independent from one another as soon as is practicable.” In re Marriage of Blume, 59 NE 3d 135 – Ill: Appellate Court, 3rd Dist. 2016

Once durational maintenance is acknowledged as rehabilitative maintenance what is the duty of the maintenance receiving spouse to seek employment?

“A spouse applying for maintenance has an affirmative duty to seek gainful employment.” In re Marriage of Heller, 505 NE 2d 1294 – Ill: Appellate Court, 1st Dist. 1987

This duty to seek employment is ongoing.

“While receiving maintenance, [a party] has an affirmative obligation to seek appropriate employment and to make a good-faith effort to become financially independent.” In re Marriage of Cheger, 571 NE 2d 1135 – Ill: Appellate Court, 4th Dist. 1991

“The failure of the [maintenance receiving spouse] to make good-faith efforts to achieve this goal [of seeking employment], following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to section 510(a) of the Act.” In re Marriage of Mittra, 450 NE 2d 1229 – Ill: Appellate Court, 4th Dist. 1983

Requesting A Modification Of Maintenance Based On The Failure To Seek Employment

When asking for a modification of a maintenance award, the first standard is to look at the parties’ Marital Settlement Agreement to determine what procedure for modification was agreed to by the parties.

“Courts must give effect to the parties’ intent, which is best determined by examining the language used in the parties’ agreement…When the language used in the agreement is unambiguous, the agreement’s terms must be given their plain and ordinary meaning.” In re Marriage of Dundas, 355 Ill. App. 3d 423, 425-26 (2005)

If the terms of modification of maintenance aren’t crystal clear and rock solid, the parties must use the standards for modification which the statute provides.

If an “agreement provides no criteria for modification of the agreement, a court considering a request for modification would resort to the maintenance factors of sections 504 and 510 of the Act” IN RE MARRIAGE OF WIG AND WIG, 2020 IL App (2d) 190929 – Ill: Appellate Court, 2nd Dist. 2020

The statute allows for a modification 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 failure to obtain appropriate employment may be a substantial change in circumstances in itself.

“Should [a party] not fulfill [their} obligations [to gain employment], section 510(a) of the Act directs that the maintenance award may be modified upon respondent’s showing of substantial change in circumstances… A substantial change in circumstances may be a change in the ability of petitioner to support herself.”In re Marriage of Cheger, 571 NE 2d 1135 – Ill: Appellate Court, 4th Dist. 1991

Once a substantial change has been identified, the failure to obtain appropriate employment becomes a factor for the courts to consider when modifying maintenance.

“[T]he court shall consider the applicable factors set forth in subsection” the court shall consider the applicable factors set forth in subsection:

the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate” 750 ILCS 5/510(a-5)(2)

Maintenance then gets readjusted based on the current law’s formula (note to lawyers: there is something of a split of authority on this)

“If, after reviewing the relevant factors, the court concludes that the modification of a maintenance award is “appropriate,” it must proceed to section 504(b-1) and set an award in accordance with the guidelines in paragraph (1) of subsection (b-1) or set a nonguideline award in accordance with paragraph (2) of subsection (b-1).” In re Marriage of Carstens, 101 NE 3d 181 – Ill: Appellate Court, 2nd Dist. 2018

The guidelines maintenance formula is as follows: 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)

The party trying to modify maintenance is alleging that the other party’s income is artificially low for failure to find appropriate employment. So, what number should you use for the maintenance receiver’s income? The court must impute income to the maintenance receiver based on what they should be earning.

“In order to impute income, a court must find that one of the following factors applies:…a [party] has unreasonably failed to take advantage of an employment opportunity.” n re Marriage of Gosney, 394 Ill.App.3d 1073 (2009).

The income from the missed employment opportunity must be based on current facts.

“The amount of income imputed by the court must be supported by evidence showing that it is commensurate with the [spouse’s] skills and experience.” In re Marriage of Liszka, 2016 IL App (3d) 150238

“[A] court should not base its income calculation on outdated data that no longer reflect prospective income.” Id.

Nothing lasts forever in life. We all must proceed forward and make the best of what the world has given us. No one can expect to live forever off of another person even when they are married…but especially after a divorce

“From a practical view, the obvious need for modifiability is summed up in a phrase: “life changes.” The only certainty in life is the probability of life’s ever-changing nature in the lives of divorced spouses. To conclude otherwise simply defies common sense and life experiences.” Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009

If your ex-spouse is not improving themselves years after a maintenance award or your ex-spouse insists that you get a job (or a better job), contact my Chicago, Illinois family law firm to learn more about your options.

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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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