Cordell Cordell
A Domestic Litigation Firm
In Illinois, maintenance or spousal support may be awarded to a spouse either by agreement of the parties or ordered by the court in conjunction with a dissolution of marriage proceeding or legal separation. The judge has the discretion in determining what type, duration, and amount of maintenance he/she deems fair and equitable after consideration of the relevant factors.
These factors are provided for specifically by statute and include:
(1) the income and property of each party,
(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 education, training, and employment due to 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 him/herself through appropriate employment,
(6) the standard of living established during the marriage,
(7) the duration of marriage,
(8) the age and the physical and emotional condition of the 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 licenses of the other spouse,
(11) any valid agreement of the parties, and
(12) any other factor that the court finds to be just.
There are several types and variations of maintenance that may be awarded. Maintenance can be ordered to be paid in installments (e.g., on a monthly basis) or in gross (e.g., one lump sum payment).
Permanent maintenance may be ordered where it is unlikely that a spouse will be able to secure regular employment due to suffering from a serious illness or disease, or where a spouse has foregone employment or schooling to devote efforts at supporting the family in the home during a long-term marriage.
A court may also order temporary maintenance while the parties’ initial divorce or separation case is pending until a final order or judgment is entered.
Rehabilitative maintenance is awarded to allow a spouse to attend school or seek employment in order to become self-supporting over a period of time, and this type of maintenance is usually ordered to either terminate on a specific date or set for the court’s review on a future date.
However, simply because a judgment states that maintenance will terminate on a date certain does not guarantee that maintenance will terminate on that date, as the spouse receiving maintenance may show reason for the maintenance to continue if still furthering his/her education or pursuing employment and the judge finds it is warranted.
If a spouse later seeks to modify the terms of the maintenance, he/she would need to show a substantial change in circumstances to warrant modifying the prior award of maintenance. If the order for maintenance states that it is reviewable upon a specific date, then the parties have an automatic right to review the terms of the prior maintenance award and no showing of a substantial change in circumstances is necessary.
Where the parties agree that maintenance is non-modifiable, neither party can change the terms of the maintenance even if there is a substantial change in circumstances before the agreed upon end date for maintenance payments.
As to non-modifiable maintenance, the parties may agree to make a maintenance award non-modifiable, but a court cannot order that a maintenance award be non-modifiable.
In modifying a maintenance award, the court must consider the factors initially taken into account in issuing its original order but also must consider additional factors, such as any changes in employment status and the incomes of the parties and whether such changes were made in good faith, efforts of the spouse receiving maintenance to become self-supporting, the duration of the maintenance payments previously paid and remaining to be paid relative to the length of the marriage, the property awarded to each spouse under the original divorce judgment and the present status of the property.
There is no mandated formula to be used in determining the specific amount of maintenance to award in Illinois, as the amount is in the discretion of the court after consideration of the statutory factors. Many courts will implement a formula to equal out the difference in incomes between the parties.
Another guideline used by courts in Illinois involves looking at the specific needs and expenses of the spouse who is to receive maintenance and ordering an amount sufficient to maintain that spouse’s needs to sustain the same standard of living as was enjoyed during the marriage.
In these cases, the court will also weigh the income and needs of the payor spouse in conjunction with maintaining the standard of living he/she enjoyed during the marriage as well.
Unless it is maintenance in gross (e.g., lump sum payment) or is otherwise agreed by the parties, future maintenance will terminate upon the death of either party or if the receiving spouse remarries. Maintenance may also terminate once the receiving spouse cohabitates with another person on a resident, continuing, conjugal basis. Maintenance will also be suspended while a payor spouse is in prison.
Illinois courts have also terminated rehabilitative maintenance where it was originally awarded to allow the receiving spouse to seek employment or obtain further training or education to become financially self-supporting, but the court found that the receiving spouse was not making diligent efforts to meet that obligation. The parties may agree that the maintenance payments be directly paid to the receiving spouse or the court may order the payments to be sent through the court clerk.
A receiving spouse may bring an action to enforce a maintenance order where the payor spouse is not complying with its terms.
If the court finds that the payor spouse’s non-compliance with the maintenance order was willful and without justification, the court has the discretion to hold the payor spouse in contempt and enter sanctions against the payor spouse.
Additionally, a judgment for past due support under a maintenance order will accrue interest until it is paid. Generally, orders for support, such as maintenance or child support, are also precluded from being discharged in bankruptcy.
