In the state of Illinois, maintenance, also known as alimony, can be awarded to a spouse either by agreement between the parties or court-ordered by a judge in the dissolution of a marriage or a legal separation. ?The judge decides what type of maintenance the spouse will receive, the amount of time they will receive it, and the amount the Court deem fair and equitable after considering all of the relevant factors in the case. ?
Those factors are provided for by statute and include:
- Property and income of each party
- Needs of each party
- Realistic present and future earning potential of each party
- Impairment of future earning potential of the party seeking the maintenance due to that party devoting time to domestic duties or having not obtained education, training, or employment due to the marriage
- Any impairment of present and future earning potential of the party who would be paying maintenance
- The time that is necessary for the party seeking maintenance to acquire proper education, training, or employment, and whether that party can support herself/himself through employment
- Standard of living accustomed to during the marriage
- Length of marriage
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties
- All sources of public and private income, including, without limitation, disability and retirement income
- Tax consequences of property division and economic circumstances of the parties
- ?Contributions and services by the party that is seeking maintenance to the education and career training of the other spouse
- ?Valid agreement of the parties
- Any other factor the court sees fit
Types of Maintenance in Illinois
There are several types of maintenance that can be awarded. ?It can be ordered to be paid in installment payments, or in a one-time lump sum.
Permanent maintenance is ordered when it is not likely that a spouse will be able to secure regular employment due to a serious illness or where a spouse has foregone employment or attending school to devote their time to supporting the family in the home during a long-term marriage. ?This type of maintenance is generally only awarded where the parties have been married for more than twenty (20) years.
Temporary maintenance is ordered while the parties? case is pending, and until the final order is entered.
Rehabilitative maintenance is awarded to allow a spouse to go to school or seek employment in order to become self-sufficient over a period of time. ?This type of maintenance is usually ordered to end on a specific date or set for judicial review at a later time. ?The majority of maintenance awards fall under this category, particularly because Illinois recently adopted calculation-based maintenance guidelines for all Courts to follow when awarding maintenance, much like the Courts do with child support.
Keep in mind that if the Court awards maintenance under the new guidelines, maintenance is always modifiable upon a substantial change of circumstances (see below). ?However, parties may agree to make maintenance non-modifiable. ?Parties may also choose not to follow the formula for calculating maintenance amounts or duration of payments.
Maintenance Modification
If, at a later date, a spouse seeks to modify the maintenance agreement or Order, they would have to show a substantial change in their circumstances to warrant the current agreement to be changed. ?If the order states that the agreement can go under review on a set date, the parties have an automatic right to review the terms of the order and no proof of a change in circumstances is necessary. ?
If the parties agree that the maintenance cannot be modified, neither of them can change the terms of the maintenance even if there is a change in circumstances before the set end date. ?Parties can even agree that certain termination factors for alimony, such as remarriage or cohabitation, will not terminate maintenance payments. ?The reason that parties can do this for maintenance cases, and not child support, is because the Court?s view alimony agreements to essentially be a contract between the spouses. ?However, child support is supposed to benefit the child, and thus the Court has the final determination on whether a child support award is in the best interest of the child. ?Thus, Illinois public policy prohibits agreements to make child support non-modifiable.
Something that is important to know is that the parties might agree to make a maintenance award non-modifiable, but a court cannot order the maintenance be non-modifiable. ?Thus, any maintenance award that is conveyed via a Court?s judgment, following either a hearing or a trial, will always be modifiable. ?Further, even if maintenance was agreed to via a Settlement Agreement, alimony is still always modifiable unless the agreement expressly states that it cannot be changed. ?
If maintenance is able to be modified, the court must consider the factors that were initially taken into account in the original order. ?They must also consider additional factors like changes in employment status and the income of the parties, and whether these changes were made in good faith, the efforts of the spouse receiving it to become self-sufficient, the duration of maintenance payments already paid, and the property that was awarded to each spouse under the original divorce decree. ?However, although the Court must consider the same original factors, the Court must still evaluate maintenance on the current laws in effect for maintenance. ?The Court cannot apply the old law if the statutes have since been amended, which is what most Courts are doing now with the recent 2015 and 2016 amendments to maintenance laws in Illinois.
There is always a chance for circumstances to change in one form or another. ?That is why it is so important to have an experienced divorce attorney on your side. ?At Sherer Law Offices, our experiences attorneys will guide you through the process of modifying your maintenance agreement and make sure that you get exactly what you need and deserve. ?
