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MAINTENANCE AND SUPPORT

  

NEW ILLINOIS MAINTENANCE RULES IN EFFECT JANUARY 1, 2019
 

New rules regarding the amount and duration of maintenance are now in effect in Illinois for spouses with a combined gross income under $500,000.  These rules set up a mathematical formula which a court is to apply when determining the amount and duration of maintenance.   Although, a court does not have to apply the formula set forth in the new rules, the court will have to state reasons why it is not applying the formula in a particular case.  In my experience, the courts usually apply statutory formulas when determining the duration and amount of maintenance, and it is likely that this formula will become routine.
 

The maintenance formula is calculated by taking 33 1/3% of the payor's net annual income minus 25% of the payee's net annual income and that result is the annual amount of maintenance that the payor spouse must pay the payee spouse. Finally, there is a maintenance cap that applies to the maintenance calculation which may reduce the amount of maintenance the payor spouse must pay.  The maintenance cap is that the payee spouse cannot receive more than 40% of the parties' net income. A sample application of the maintenance formula and cap is as follows:
 

Assume the payor spouse makes $60,000 net per year and the payee spouse makes $30,000 net per year.  The amount of maintenance the payor spouse will pay under the formula is $12,000 per year or $1,000 per month.  The calculation is as follows:
 

Payor Net Income = $60,000 - Payee Net Income = $30,000
 Payor Net x 33.3%  minus Payee Net x 25% = Support Due
 ($60,000 x 33.3% = $19,980)  minus  ($30,000 x 25% = $7,500)

$19,980 minus $7,500 = $12,480 yr /12 = $1,040 month

 The next step is to apply the maintenance cap which states that the payee spouse cannot receive more the 40% of the net income of the parties.  The cap controls over the formula.  In the above example, when the cap is applied, the payor spouse's maintenance obligation will be reduced by more than 50% and the payor spouse will pay the payee spouse maintenance in the amount of $6,000 per year or $500 a month.  The maintenance cap calculation is as follows:
 

MAINTENANCE CAP APPLICATION
 

Step 1: Calculate Net Income and multiply by 40%:
 Payor's net income: $60,000
 Payee's net income: $30,000
 Total Spouses' net income: $90,000 x 40% = $36,000

The $36,000 is the CAP amount which is the maximum total income the Payee may receive.


 TO APPLY THE CAP, COMPETE STEP 2

Step 2: Subtract Payee's Income from 40% Cap:
 Maintenance 40% Cap: $36,000
 Payee's net Income:       $30,000
 Maintenance After Cap $6,000 yr /12 = $500 month
 

It is important to note that the court must first find that maintenance is appropriate before applying the formula, and some factors may result in the denial of maintenance.  The factors in determining whether maintenance is appropriate are listed below under the Maintenance Factors section:
 

DURATION OF MAINTENANCE:
 

The maintenance statute also set forth a duration formula which calculates the length of time that the payor spouse must pay the maintenance to the payee spouse.  The duration is based upon the length of the marriage and is calculated by multiplying the statutory factor times the number of years of marriage: The statutory factors are as follows:  0-5 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 lest 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 20 years or more the maintenance will be permanent or equal to the number of years of marriage.  For example, if the marriage was 5 years, the length of maintenance would be 1.2 years (5 years x .24).  If the marriage was 12 years, the length of the maintenance would be 6.24 years (12 years x .52).  It is important to note that maintenance will still terminate if the payee spouse remarries, dies or lives with another on a resident continuing conjugal basis.  Further, maintenance can be modified and reduced upon a substantial change in the circumstances of the parties, such as a good-faith retirement, unemployment, or some other substantial change in the income of the parties.
 

WHEN CAN A SPOUSE BE ORDERED TO PAY SUPPORT OR MAINTENANCE IN ILLINOIS?
 

    The obligation to pay and the right to receive alimony or maintenance in Illinois arises out of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/504.  The idea of paying maintenance or alimony to a spouse or former spouse is founded upon the principle that there exists an implied duty in every marriage contract to provide support and maintenance to the other spouse if appropriate under the circumstances.  The determination or award of alimony or maintenance is left to the discretion of the trial judge.  Maintenance or alimony, however can be waived by the parties in the divorce decree as long as the waiver of maintenance or waiver of alimony is approved by the trial judge.
 

WHAT ARE THE DIFFERENT TYPES OR KINDS OF ALIMONY OR MAINTENANCE?
 

    Illinois provides for several types of maintenance, including Temporary Maintenance, Permanent Maintenance, Rehabilitative Maintenance, Maintenance in Gross or Lump-Sum Maintenance and Percentage Maintenance, all of which are described below:
 

TEMPORARY MAINTENANCE. Temporary Maintenance or alimony is temporary by its nature and is usually made during the divorce proceedings prior to the final divorce decree. At any time during the proceedings, either party may move for temporary maintenance on an expedited basis.  Temporary relief is often granted when one spouse has control of all of the assets or income and does not provide support to the other.  Upon dissolution of the marriage or final divorce decree, the judge can make the temporary order permanent or modify it as is equitable under the facts of the case.
 

PERMANENT MAINTENANCE: Permanent Maintenance is maintenance of an indefinite duration and it is usually awarded when one spouse is not employable or is employable at a lesser income level than the other spouse.  The longer the marriage the greater the chance that permanent maintenance or permanent alimony will be awarded or provided.  Also, the greater the disparity of income between the parties, the greater the likelihood that permanent maintenance will be granted.  Permanent Maintenance is not actually permanent as it terminates if the receiving spouse remarries, cohabits with another person on a resident continuing conjugal basis, or dies.
 

REHABILITATIVE MAINTENANCE:  Rehabilitative Maintenance or alimony, is maintenance given on a limited basis.  This type of maintenance or alimony is awarded to a spouse who has the potential to become self-supporting over time through searching for employment, pursuing a trade school or an education.  Rehabilitative maintenance often comes with strings attached in that the receiving spouse must search for appropriate employment, or take trade school classes or attend a college or university to obtain a degree and pursue a career.  If the spouse does not make reasonable or good faith efforts in this regard, the court can terminate the maintenance.  Once the spouse becomes self-sufficient, the court will terminate or reduce the maintenance as appropriate.
 

MAINTENANCE IN GROSS OR LUMP-SUM MAINTENANCE:  Maintenance in Gross also known as Lump Sum Maintenance is maintenance or alimony which is payable in a fixed amount for a fixed duration.  It is vested in the payee spouse when the final divorce decree is entered.  It can be paid in a lump sum or over a period of time, but the key factor is the amount of money which must be paid is fixed and not modifiable. This type of maintenance can be paid out of the payor's income stream or through a property distribution.  Maintenance or Alimony in gross is often attractive to the payor spouse because he knows how much he will have to pay in maintenance and it has a definite end date.  It can also be attractive to the payee spouse because it is guaranteed, cannot be modified and can be structured so it does not terminate when the spouse remarries or cohabits with another person on a resident and continuing conjugal basis.  It is sometimes referred to as a "buy-out" of maintenance and can often be funded by a greater distribution of the marital property to the payee spouse if sufficient marital assets exist.
 

PERCENTAGE MAINTENANCE:  Percentage maintenance can be of limited or permanent basis and it is characterized by requiring the payor spouse to pay a fixed percentage of her income to the payee spouse.  For example, the payor spouse may be required to pay 20% of her net income or some other appropriate percentage of her income to the receiving spouse on a monthly basis.  This type of maintenance will typically require the payor spouse to provide the payee spouse with income verification such as tax returns or pay stubs so the payee spouse can verify he receives all of the maintenance to which he is entitled.
 

WAIVER OF MAINTENANCE OR WAIVER OF ALIMONY:  It is not uncommon in Illinois for each party to a divorce to waive maintenance or waive alimony.  In order to waive maintenance or alimony, the waiver must be contained in the divorce decree or judgement of dissolution and the court must approve the waiver as appropriate under the circumstances. Often a waiver of alimony or maintenance is given by a spouse in exchange for a greater marital property settlement or in exchange for some other right or promise.
 

MAINTENANCE FACTORS:
 

WHAT FACTORS ARE USED TO DETERMINE AN OBLIGATION OR RIGHT TO MAINTENANCE OR ALIMONY IN AN ILLINOIS DIVORCE OR SEPARATION?
 

    Under Illinois law, either spouse has a right to request maintenance or alimony in a divorce or separation on a temporary or permanent basis, and the court must consider the following factors in granting an award:
 

(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;

(2) the needs of each party;

(3) the 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) 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 or is the custodian of a child making it appropriate that the custodian not seek employment;

(6) the standard of living established during the marriage;

(7) the duration of the marriage;

(8) the age and the physical and emotional condition of both parties;

(9) the tax consequences of the property division  upon the respective economic circumstances of the parties;

(10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;

(11) any valid agreement of the parties; and

(12) any other factor that the court expressly finds to be just and equitable.

Illinois Compiled Statutes, 750 ILCS 5/504(a)(1-12).
 

AWARD OF MAINTENANCE. OR ALIMONY:   The court or trial judge has much discretion to decide whether an award of maintenance or alimony is proper, and the amount and duration of the award is in his or her discretion.  However, short marriages weigh against maintenance or alimony awards, if awarded, absent exceptional or unusual circumstances are limited in time.  The longer the marriage and the greater the disparity of income the greater the likelihood of a maintenance award to the lower or non-earning spouse.  In addition to length of marriage and earning capacity and income, courts put substantial emphasis on the standard of living enjoyed by the parties during the marriage and will try to keep both spouses in that standard of living to the extent permitted under the circumstances.

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DISCLAIMER: THE INFORMATION CONTAINED IN THIS PAGE IS GENERAL AND SHOULD NOT BE CONSIDERED LEGAL ADVICE AND SHOULD NOT BE RELIED UPON BY ANYONE INVOLVED IN A DISSOLUTION OF MARRIAGE OR DIVORCE OR CONSIDERING A DIVORCE. YOU SHOULD CONSULT A LAWYER TO LEARN HOW THE LAW APPLIES TO THE FACTS OF YOUR INDIVIDUAL CASE AND TO PROTECT YOUR RIGHTS.

 

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