Illinois law provides that a divorcing spouse may be awarded maintenance, formerly known as “alimony” or “spousal support,” based on the parties’ respective incomes and the length of the marriage. Maintenance is not mandatory, but is often awarded to a lesser-earning spouse, especially in longer-term marriages. Maintenance can be waived by either or both parties provided that the court finds such arrangement is fair and equitable and will not impoverish one spouse or fail to provide a reasonable means for a spouse to become self-supporting.
A Court will first determine whether maintenance, or an award pursuant to the statutory guidelines, is appropriate. Maintenance is not appropriate in all instances, even if one spouse earns significantly less than the other. In cases where a spouse already receives significant support from other sources, for example, or is cohabitating with someone new on a “resident, continuing, and conjugal basis,” maintenance may not be appropriate.
Once it is determined whether maintenance is appropriate, a Court may apply statutory guidelines to determine length and duration of maintenance if the parties’ combined income is less than $500,000 and neither spouse has children from another relationship. If the Court does not apply the guidelines to determine the amount of maintenance, they must make a legal finding with the reasons for deviating from the guidelines. The guidelines in Illinois are as follows:
Amount: The amount of maintenance is calculated by taking 33.33% of the net income of the spouse who will pay maintenance) minus (25% of the net income of the spouse who will receive maintenance) = The amount of spousal maintenance to be paid each year.
NOTE** The statutory guidelines do not permit the spouse receiving maintenance to be awarded more than 40% of the couple’s combined net income.
Duration: Duration for the payment of maintenance is calculated by multiplying the length of the marriage at the time the divorce case was filed by whichever of the following percentages applies.
- If the marriage is less than 5 years, the spousal maintenance duration will equal 20% of the duration of the marriage
- 5 years or more but less than 6 years: 24%
- 6-7 years: 28%
- 7-8 years: 32%
- 8-9 years: 36%
- 9-10 years: 40%
- 10-11 years: 44%
- 11-12 years: 48%
- 12-13 years: 52%
- 13-14 years: 56%
- 14-15 years: 60%
- 15-16 years: 64%
- 16-17 years: 68%
- 17-18 years: 72%
- 18-19 years: 76%
- 19-20 years: 80%
- 20 years or more: 100% of the duration of the marriage or for an indefinite term.
Taxability: Maintenance is no longer tax deductible to the person paying maintenance or taxable as income to the person receiving maintenance, as it was prior to December 31, 2018, (the effective date of the Tax Cuts and Jobs Act), and, therefore, it is important to discuss and strategize with an attorney should you be in a situation where you will be paying maintenance.
Factors Considered: The Court will consider the following factors in determining whether an award of maintenance is appropriate. If the Court finds that the guidelines are not appropriate, the Court will use the following factors to make its finding:
- The income and property of each party;
- The needs of each party;
- The present and future earning capacity of each party;
- The “Homemaker Contribution”;
- Any impairment of the present or future earning capacity of the party against whom maintenance is sought;
- The time necessary for the party seeking maintenance to obtain the appropriate education, training, and employment;
- The standard of living during the marriage;
- The duration of the marriage;
- The age and physical and emotional condition of both spouses;
- All sources of public and private income, including disability and retirement income;
- Tax consequences of the property division;
- Contributions of one spouse to the other’s education or career;
- Agreements between the parties;
- Any other factor that the court finds to be just and equitable.
An individual case can hinge on just a few of the above factors, depending on the unique circumstances of your case. Maintenance can be awarded in different forms. There are 4 main types of maintenance: fixed term maintenance, indefinite maintenance, renewable maintenance, and reserved maintenance. A Court also has discretion to award more property to the other spouse in lieu of maintenance.
The process of divorce can be overwhelming and daunting. It is important to have a skilled and competent attorney on your side to navigate through all of the complexities of the law as it pertains to maintenance.