HENDERSON & MEHTA
Law and Mediation
Spousal Maintenance / Alimony Lawyers - Joliet, IL
Often one of the most contentious aspects of a divorce or legal separation is maintenance. Maintenance is the legal term used in Illinois to refer to spousal support or alimony. In Illinois, a spouse with less income and earning ability can be awarded maintenance as part of a divorce or legal separation to provide for the support of the lesser earning spouse.
Entitlement to Maintenance
In order for a one spouse to receive maintenance from the other, the court must first find that an award of maintenance is appropriate. The Illinois Marriage and Dissolution of Marriage Act provides several factors that are used to determine whether maintenance is appropriate in a divorce or legal separation including:
(1) the income and property of each party, including the marital property apportioned and non-martial property assigned to the party seeking maintenance s well as all financial obligation 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 each party;
(5) any impairment of the realistic present or future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment or career opportunities due to the marriage;
(6) the time necessary to enable to the party seeking maintenance to acquire appropriate education, training, and employment whether that party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking 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 of the property division upon the respective economic circumstances of the parties;
(12) contribution and service by the parties seeking maintenance to the education, training, career or career portion, 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;
How Maintenance is Calculated
Amount of Maintenance
The 2017 Tax Cuts and Jobs Act has changed Maintenance dramatically. For couples divorced on or before December 31, 2018, maintenance is tax-deductible to the payor and includible in the income of the recipient. In other words, maintenance shifts the tax consequences for both parties. The party receiving maintenance has to declare their maintenance as income and pay taxes on it. The party paying maintenances able to deduct the maintenance from their income reducing the amount of income they pay taxes on.
The Tax Cut and Jobs Acts removed the provisions under the Federal Tax Coded that shifted the tax burdens on maintenance. For couples who divorce on or after January 1, 2019, the spouse who pays maintenance is no longer allowed to deduct the maintenance from their income. Similarly, a spouse who receives maintenance no longer has to pay taxes on their maintenance. The Illinois legislature has drafted a new formula to adjust maintenance with the changes to the tax code.
For couples divorced on or before December 31, 2018, the amount of maintenance is determined by taking 30% of higher earner’s gross (before tax) income and subtracting 20% of other party’s gross to determine the maintenance amount. But in no event will the receiving party’s income and maintenance combined cannot exceed 40% of both parties incomes.
If the parties are divorced on or after January 1, 2019, then maintenance is calculated by taking 33.3% of the higher earner’s net (after tax) income and subtracting 25% of the lower earners net income. Then the double-check so that the receiving party’s income and maintenance combined cannot exceed 40% of the combined net income of the parties. The new law provides that if maintenance and child support combined would exceed more than 50% of the person owing support’s income, then the court may determine non-guideline support. In other words, the court does not have to use the formula to determine the appropriate amount of maintenance.
Length of Maintenance
The 2019 changes to the maintenance law also provide changes to the length of time that a recipient of maintenance is awarded maintenance. The length of the marriage is calculated as the period between when the parties were married and when an action for Dissolution of Marriage or Legal Separation was filed. The duration of maintenance is based upon the length of the marriage:
0-5 years 20% Length of Marriage
5-6 years 24% Length of Marriage
6-7 years 28% Length of Marriage
7-8 years 32% Length of Marriage
8-9 years 36% Length of Marriage
9-10 years 40% Length of Marriage
10-11 years 44% Length of Marriage
11-12 years 48% Length of Marriage
12-13 years 52% Length of Marriage
13-14 years 56% Length of Marriage
14-15 years 60% Length of Marriage
15-16 years 64% Length of Marriage
16-17 years 68% Length of Marriage
17-18 years 72% Length of Marriage
18-19 years 76% Length of Marriage
19-20 years 80% Length of Marriage
If a Marriage is more than 20 years old then the maintenance can be equal to the length of the marriage or indefinite. It is up to the court to determine the length that maintenance will exist.
Forms of Maintenance
The Court has the authority to award different types of maintenance.
These types include:
Fixed Term Maintenance
Maintenance is awarded for a specific time frame. After that time frame, the party receiving maintenance is barred from receiving any more maintenance. For example a party is awarded maintenance for 5 years. After 5 years, they cannot be awarded any more maintenance.
Indefinite Maintenance
Indefinite Maintenance does not have an termination date or date when the maintenance stops. It continues until it is modified or terminated.
Reviewable Maintenance
Reviewable Maintenance is awarded for a specific time period. After that time period it can be reviewed. At the review period, the court makes a determination on whether to extend, modify, or terminate maintenance. The court will typically look at the finances of both parties. In addition, the court may pay special attention to what the spouse receiving maintenance has done to become self-sufficient.
Termination of Maintenance
In addition to a specific time frame for terminating maintenance, certain events terminate maintenance. This includes such as the death of either party, the remarriage of the party receiving maintenance, or the party receiving maintenance cohabitating with another party on a continuing, conjugal basis. A continuing, conjugal cohabitation is when a party receiving maintenance is living with a paramour (significant other). The Court uses specific factors to determine whether cohabitation is occurring including, spending the night together; sharing expenses; vacationing together; spending the holidays together; referring to each other as husband and wife; and exchanging gifts.
Modification of Maintenance
The amount of maintenance can be changed or modified upon a showing of a substantial change in circumstances. This can take many forms. Sometimes a spouse paying maintenance loses their job or has another involuntary form of income loss. Other times the spouse receiving maintenance may obtain new higher paying employment. The Court can consider whether the maintenance needs to be revisited in light of new circumstances. Unfortunately spousal support can be one of the most contentious aspects of any Dissolution of Marriage or Legal Separation case. Sometimes a person paying maintenance will quit their job or otherwise take measures to voluntarily decrease their income. If exposed, these individuals are typically punished by having the higher income imputed or assigned to them.
Enforcement of Maintenance
Sometimes a former spouse refuses to pay court ordered maintenance. Under these circumstances the court has the power to enforce support order through contempt proceedings.
The attorneys at Henderson & Mehta Law and Mediation handle numerous maintenance cases. They remain current on the latest version of the law as this area of law as this area is rapidly changing. Please contact the office today for an evaluation of your case.