Posted on February 12, 2023

Which Spouse Pays Maintenance In An Illinois Divorce?

In an Illinois divorce, the amount of maintenance (formerly known as alimony), the duration of maintenance, the modifiability of maintenance are all important considerations. The first step in considering maintenance in an Illinois divorce is to determine which spouse will be paying maintenance.

Obviously, the spouse who makes more money pays maintenance (formerly known as alimony) to the other spouse in an Illinois divorce…but it is not so simple.

Maintenance is far from automatic in Illinois.

“Maintenance issues are presented in a great number of factual situations and resist a simple analysis.” In re Marriage of Mayhall, 311 Ill.App.3d 765, 769, 244 Ill.Dec. 227, 725 N.E.2d 22, 25 (2000)

The spouse requesting maintenance must pass a series of subjective and objective tests in order for a court to order maintenance payments from the higher earning spouse.

Is Maintenance Appropriate In Your Illinois Divorce?

Before a single calculation is made, an Illinois divorce court must consider whether maintenance is even warranted to be considered.

“Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act…provides that the court may award temporary or permanent maintenance, and that the amount of maintenance and the time period during which maintenance is to be paid shall be determined after the court has considered all the relevant factors” In re Marriage of Carpenter, 677 NE 2d 463 – Ill: Appellate Court, 5th Dist. 1997

The actual language of this first test to deem maintenance appropriate is as follows:

“In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…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. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:

(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2) the needs of each party;(3) the realistic present and future earning capacity of each party;(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6) 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;(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7) the standard of living established during the marriage;(8) the duration of the marriage;(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10) all sources of public and private income including, without limitation, disability and retirement income;(11) the tax consequences to each party ;(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13) any valid agreement of the parties; and(14) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504(a)

These statutory factors are not to be weighted equally. “The court is not required to give the factors equal weight and has broad discretion to ‘grant a temporary or permanent maintenance award for either spouse in amounts and for periods of time as the court deems just.’” In re Marriage of Reynard, 801 NE 2d 591 – Ill: Appellate Court, 4th Dist. 2003

With 14 different factors for the court to base an award of maintenance…maintenance is very likely to be deemed appropriate in any Illinois divorce.

The most salient factor is 750 ILCS 5/504(a)(3) “the realistic present and future earning capacity of each party.”

The current and future incomes of both parties determine the needs and capacity to pay of each party. This is the point of maintenance in an Illinois divorce.

“[W]hen former spouses have grossly disparate earning potentials, the goal of financial independence may not be achievable because of the dependent former spouse’s inability to maintain the standard of living shared during the marriage.” In re Marriage of Charles, 284 Ill.App.3d 339, 348, 219 Ill.Dec. 742, 672 N.E.2d 57, 64 (1996).

When a couple lived together…they had the same lifestyle. A difference in incomes is going to mean someone is going to have to pay the other to maintain that lifestyle.

Again, this initial almost always deems maintenance appropriate in an Illinois divorce.

The subsequent, more mathematical, steps can often deny maintenance even if maintenance is deemed appropriate.

Is The Income Differential Enough To Award Maintenance In An Illinois Divorce?

Maintenance awards cannot allow the spouse receiving maintenance to earn more than 40% of the total combined incomes of the two parties to an Illinois divorce.

“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 5/503(b-1)(1)(A)

If a spouse earns more than 67% or more of their spouse’s income…they are not getting a maintenance award in an Illinois divorce.

Conversely, if a spouse makes less than 150% of their spouse’s income…the higher earning spouse will not have to pay maintenance in an Illinois divorce.

If the incomes of the spouses even warrants maintenance, the maintenance is still reduced to the point that the maintenance receiver cannot receive maintenance that would cause them to have more 40% of the total income including their maintenance payment.

The higher earning spouse has to make at least 300% more than the lower earning spouse to not have their income payment affected by this 40% total income cap.

The maintenance owed is then determined by “the guidelines”

“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1)

The guidelines maintenance calculation is as follows:

“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)

There are no guidelines calculations for relatively wealthy couples.

“[i]f the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship” 750 ILCS 5/504(b-1)(1)

At a joint income of $500,000 or higher the bigger earning spouse can be expected to pay some kind of maintenance unless the other spouse is making an equivalent salary.

Avoiding Maintenance In An Illinois Divorce

The possibility of paying maintenance is stress inducing. Starting a new life with a continuing obligation to your former partner is no one’s idea of a new chapter.

In order to avoid maintenance, the parties can come to an agreement that maintenance will be waived by both parties.

“If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114,

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children” 750 ILCS 5/502(a)

Maintenance is never mandatory if there is an agreement to waive maintenance. An Illinois divorce court cannot suggest otherwise.

“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)

Getting the lesser earning spouse to agree to waive maintenance will require some kind of quid pro quo. Invariably, the spouse that should pay maintenance will have to offer some kind of buyout to the other spouse to avoid maintenance.

Once the buyout in lieu of maintenance is agreed to, it can never be undone.

“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)

“A property settlement in lieu of maintenance is nonmodifiable.” In re Marriage of Rowden, 516 NE 2d 1041 – Ill: Appellate Court, 3rd Dist. 1987

Guaranteeing Maintenance In An Illinois Divorce

Getting a maintenance award in an Illinois divorce is only the beginning. Maintenance cannot be guaranteed after an Illinois divorce except by agreement of the parties.

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

“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 is no precise formula for a substantial change in circumstances.” In re Marriage of Solecki, 2020 IL App (2d) 190381

Given enough time, a person who does not want to pay maintenance is going to find a way to trigger a substantial change in circumstances.

The only way to avoid a modification of maintenance is to contract for non-modifiable maintenance.

“The parties may provide that maintenance is non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances….The judgment may expressly preclude or limit modification of other terms set forth in the judgment if the agreement so provides .Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f)

There are many different ways to think about a maintenance obligation in an Illinois divorce. Be sure that your divorce attorney has thought of all of the ways the Illinois Marriage and Dissolution of Marriage Act and the relevant case law can help…or hurt you. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois divorce attorney.

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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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