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Choose Your Spousal Maintenance Award Carefully – Divorce


Changes to Spousal Maintenance Law in Illinois

In 2019, a significant change in the tax code was made regarding
maintenance, which resulted in spousal maintenance (formerly known
as “alimony”, also known as “spousal support”)
being tax-free to the recipient and eliminating the tax credit for
the payor. The reason for this change was not to benefit the
family, but rather the government, as the tax credits were creating
a kind of tax subsidy for the formerly married couple that
sometimes lowered the payor’s tax bracket. The change to the
law was intended to ensure that the payor was not reaping the
benefit of paying less in taxes as a divorcee than they would have
as a married person.

The other major change ishowspousal maintenance is now
calculated in Illinois. Previously, maintenance was calculated by
deducting twenty percent (20%) of the recipient’s gross income
(i.e. incomebeforetaxes) from thirty percent (30%) of the
payor’s gross income, with a cap on that amount preventing it
from being higher than forty percent (40%) of the parties’
combined income.

Under the new law, maintenance is calculated such that twenty
five percent (25%) of the recipient’s net income (i.e.
incomeaftertaxes and certain other qualified expenses) is deducted
from thirty-three percent (33%) of the payor’s net income. The
purpose of this change was to consider the tax brackets of the
parties in the calculations, and also recognize certain other
court-ordered expenses like maintenance from another marriage,
child support for a child outside of the marriage, and the like in
an effort to be sure that the maintenance amount was equitable.

When Spousal Maintenance Is Appropriate

Under current Illinois law, maintenance is calculated using the
parties’ respective net incomes (as detailed above) to
calculate the amount of maintenance that will be awarded to the
lower-earning party. The duration of maintenance is based on the
length of the marriage-the longer the marriage, the longer one part
can be entitled to maintenance. A marriage of five years or less is
entitled to only twenty percent (20%) of the length of the
marriage, but that percentage amount increases as the length of the
marriage increases. For marriages of twenty years or more,
maintenance can be ordered to be “indefinite” for a
period of twenty years or more, depending on the circumstances of
the case. Under 750 ILCS 5/504, there are many different
factors that the judge can take into consideration when deciding
whether maintenance is necessary, and appropriate, including the
recipient’s work history, ability to support themselves
financially, the length of the marriage, the levels of education,
and whether the recipient is in need of financial support for a
finite amount of time in order to go back to school or seek other
professional training to become financially self-sufficient. The
ultimate goal of maintenance is to try and preserve the standard of
living that both parties enjoyed during the marriage, and most
importantly to ensure that neither party becomes destitute, and a
burden to the state, as the result of the divorce.

Is There a Need for Maintenance?

It is important to realize that not all cases are
“maintenance cases”, and that judges have discretion
under the statute to decide whether to award maintenance at all,
whether to award a lower or higher amount, and the duration of the
marriage. If both parties are gainfully employed and earn somewhat
similar incomes, maintenance may not be appropriate. Likewise, if
the marriage was short, the court may decide that maintenance is
not appropriate because there was not a true financial dependence
during the marriage.

Overall, it is critical to know that a spousal maintenance award
really requires a need, not just a want. An individual is not
automatically entitled to receiving maintenance just because their
spouse is the higher earner. A maintenance award is multi-faceted,
and a lot more complicated than just who earns more money in the
marriage.

Types of Spousal Maintenance Awards

Monthly Maintenance

The most common type of spousal maintenance award is monthly
maintenance wherein one party pays a monthly amount calculated
pursuant to the statute for a set period of months, which
terminates after the period of time has expired or other events
including the remarriage or cohabitation of the recipient or the
death of either party. If the maintenance is not reviewable, it
cannot be modified, terminated early, or extended because the
amount has been deemed “non-modifiable”. This guarantees
maintenance is paid for a certain period of time, without the
possibility of an early end, but also means that once it’s
over, it’s over.

If the maintenance is reviewable, another substantial change in
circumstances like the payor’s retirement or a major change in
the income of one of the parties like an increased income, or
retirement could be a reason to change the maintenance amount or
end it early, but the maintenance must be reviewable in order to
change the terms. To change the terms, one must petition the court
and show the change in circumstances, and the judge must agree that
the change is significant enough to warrant a change to the
parties’ divorce judgment. If the spouse receiving maintenance
starts working a new job where they make significantly more money,
that could be grounds for modifying or even terminating maintenance
early. If the payor loses their job involuntarily and is unable to
get similar-paying work, that could also be grounds for a
modification or early termination. However, it’s important to
note that in order to qualify for modification or termination based
on a reduced salary, the reduction has to be involuntary. The payor
cannot just quit their job and use that as a basis to ask that
their maintenance be reduced. If they do, they will likely be met
with the instruction to go out and get another job, and their
maintenance obligation will remain unchanged.

Lump Sum Maintenance

Sometimes divorcing couples agree to a lump sum maintenance
amount in an effort to get the money upfront and avoid having to
deal with monthly payments. Often lump sum payments are for a
reduced amount to incentivize the payor to pay the maintenance
upfront, knowing that it’s possible it could be terminated if
their partner decides to remarry or cohabitate with a partner
during the maintenance period and that payor would no longer be
entitled to terminate the maintenance because the full amount had
already been paid.


Divorce attorneys in Chicago

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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