The art of spinning plates comes in extremely handy when you’re going through a divorce. You’ll be trying to balance lots of things that appear to be teetering on the edge over the coming months.
Who will the kids live with? How will you divide your sentimental items? What about your pensions? And how will you deal with the emotional fallout of those decisions?
There’s just so much to keep stable.
Many times, reaching an agreement about the finances is the most time consuming and often the most complicated.
To meet each person’s needs using only a limited pool of resources is to walk a tightrope. Putting one foot wrong when it comes to your income needs will cause the whole agreement to fall away and your plates come tumbling down.
For the receiving spouse, maintenance (also known as alimony or spousal support) exists to take away the worry of how you’ll meet your monthly expenses.
For the paying spouse, maintenance exists because the law assumes that the other spouse made certain sacrifices in the marriage that affected their earning ability.
But it’s not awarded in every case.
By the end of this article, you’ll have a much clearer understanding of the way that spousal maintenance works in Illinois. You’ll also see why an expert’s help can be invaluable!
What is Spousal Maintenance?
The term spousal maintenance in Illinois is really quite broad. It can be used interchangeably to mean a couple of different things.
If you’ve heard of the terms ‘alimony’ or ‘spousal support’, you know what we’re talking about here.
In a nutshell, spousal maintenance is an obligation on the higher earning spouse to pay a set figure each month to the lower earning spouse so that they are able to cope in a household that now finds itself without the primary breadwinner.
Maintenance is only for Married Couples
The first thing to get straight is that in order to make a claim for maintenance, you have to have been married to the person you want to claim it from.
This might seem obvious but it’s a point that’s often misunderstood.
In Illinois family law – there are no rights for long-term couples. Even if you’ve been in a relationship with someone for twenty years, own a house together or have kids together. If you break up, you can make a claim for child support but not spousal maintenance.
Will There Be Spousal Maintenance in My Divorce Case?
Spousal maintenance is not an automatic right.
Just because one person earns more than the other does not necessarily mean that there’ll definitely be a maintenance obligation.
In fact, in recent years, Judges have been in favor of ending financial ties sooner rather than later.
There are a number of benefits to there being no spousal maintenance awarded, and the finances being divided in other ways.
Both parties will know what the future holds from the outset. You’ll know exactly what you have coming in and going out right now. You’re not dependent on the other person staying healthy and keeping their job.
There’s no chance that you’ll be back in court again for enforcement. The finalizing of your divorce is well and truly final.
So When Is Spousal Maintenance Necessary?
As with all decisions in Illinois Family Law, the overarching principle is fairness.
However, what is fair or not fair differs from person to person, even between Judges.
Keep in mind as we continue through the factors that even if something seems to fit in all the boxes, the court will never approve an agreement which is clearly unfair.
We’ll move onto the factors that should be considered in a second.
But first, let’s deal with what is not considered.
Bad conduct is not a reason for someone receiving maintenance.
Affairs, abandonment, and even suffering verbal or physical abuse are not reasons in and of themselves that someone should receive maintenance payments.
Compensation is not what this is about.
The payment of maintenance is more or less entirely down to the numbers.
Factors Affecting Whether There Should be Payments
The law sets out various factors which decide whether any maintenance should be paid at all.
Broadly speaking, the factors are as follows:
- The value of the marital assets and how they will be distributed to each person during the divorce
- The financial need, or expenses, of each party
- Each party’s income, both now, and the potential to earn in the future
- Genuine commitments which impact ability to earn – childcare or caring for a disabled relative for example
- The standard of living enjoyed during the marriage
- The length of the marriage
- Other factors potentially related to employability, such as a spouse’s age or physical health
- Any other sources of public or private income
- Tax obligations that may be created by the division of marital property
- Contributions one party may have made to the education or earning potential of the other partner
- Prenuptial or post-nuptial agreements
- Any other factors which it would be fair to consider
How does this work in real life?
Well, the general idea is to build a picture of whether somebody really needs the extra money each month and whether the paying party is actually able to meet that need. But let’s be clear, “need” is a subjective term – as you may have guessed from the “standard of living” factor above. To put it bluntly, the law assumes that if you enjoyed a certain lifestyle during the marriage then your “need” for maintenance is greater.
How is Spousal Maintenance Calculated?
Finally – something that is not being left to interpretation! Some real calculations we can get our teeth into! Well – sort of.
Helpfully, if your case is a good candidate for maintenance to be paid, the law does set out how spousal maintenance should be calculated.
33% of the payer’s annual net income (after tax)
25% of the recipient’s annual net income (after tax)
The answer is the yearly amount of maintenance that should be paid. Divide it by twelve to get an idea of the monthly amount.
The calculation does have one caveat however: The 40% rule. Add the maintenance amount to the payees (person receiving maintenance) net income. If that number is greater than 40% of the parties total combined net incomes then the maintenance will be reduced down to the 40% number.
For example. Let’s say the primary breadwinner makes $200k net income per year, and the other spouse makes $50k net income per year. The maintenance calculation tells us that the receiving spouse is entitled to $53.5k per year in maintenance.
To test the 40% rule we add the receiving spouse’s income ($50k) to the maintenance award ($53.5k) and we get $103.5k. We then examine the total combined net income ($200k + $50k) of $250k in comparison, which would be $103.5k/$250k. The result is .414 or 41.4% and is not allowable under the statute. The maintenance award is limited to the 40% calculation which would be $100k, making the total allowable maintenance $50k ($100k minus the receiving spouse’s net income of $50k).
Guideline and Non-Guideline Maintenance
The calculations above might seem a tad overwhelming at first glance, but I promise they are relatively easy – but I’m afraid if you thought that it would really be easy, this is still not the total story.
That concept of fairness rears its head again.
The calculation above is a guideline. If following the guideline would be fair, then that’s what will happen. But there are some circumstances where it wouldn’t….
In those cases, the judge will use his or her discretion – which is inherently unpredictable.
This figure, which would be unique per family, is known as non-guideline maintenance.
Four Types of Spousal Maintenance
As I said earlier, spousal maintenance is the umbrella term and can be broken down further into four different types.
- Temporary Spousal Maintenance
Temporary spousal maintenance is ordered to help a party make ends meet while the divorce proceedings are ongoing.
It can take months, or sometimes years, to get the final divorce agreement stamped by the court.
Many times this type of maintenance is set based on the status quo; i.e. what is the breadwinning spouse actually paying right now. If he or she pays the mortgage and the car notes, then they will be ordered to continue paying those things. An award for an additional amount of spending money may be included as well depending on the financial situation of the parties.
It stops once the divorce is finalized and either a lump sum will have been paid or one of the other types of maintenance.
- Fixed-term Spousal Maintenance
The idea of fixed-term maintenance is to act as a buffer.
Instead of continuing forever, there will be a set time period. It could be two years or five years, for example.
Fixed term spousal maintenance is often appropriate if your children are under school-age. They need a carer for now, but once they start school, the parties’ ability to work more regular hours opens up. Their ability to work opens up even more once the kids are old enough to get themselves to and from school, too.
Another example, particularly for couples without children, could be if the spouse has a certain career path in mind but they need to finish school or take a course to make that happen.
- Reviewable Spousal Maintenance
The idea is the same as for fixed-term maintenance, but not as final.
If you’re the one receiving maintenance, you still have to try and fulfill your end of the bargain. You can’t just sit back waiting for the review and hoping the term will keep getting extended.
When the review period comes up, either party may have to petition the court to continue the maintenance or stop it. The court will then review the financial situation again, what has happened since the original order, and make a determination.
- Permanent Spousal Maintenance
The maintenance payments are to continue indefinitely.
This is usually the case in very long marriages where the couple’s lives have become so entwined and reliant on the family finances,as a whole, that it would just be impossible to go completely separate ways.
How Long Does Spousal Maintenance Last?
Again, there is both a set formula for this and the option for the court to go rogue if they think it’s necessary.
The set formula all comes down to the length of the marriage. Longer marriages equal longer maintenance obligations.
The number of years that you’ve been married is literally plugged into another math equation.
For example, if you’ve been married for less than five years, you multiply the number of years you’ve been married by 0.2. This will give you the duration.
If you’ve been married for more than twenty years, the duration is either the same number of years as the marriage or indefinitely.
For the full list of percentages, check out the legislation or consult an attorney.
Can Spousal Maintenance Ever End Early?
I told you above that permanent spousal maintenance payments continue indefinitely.
Indefinitely doesn’t mean forever. Isn’t the law great?
There are certain life events which will trigger the maintenance payments to stop completely.
The most obvious is the death of either party. A person’s estate after death can’t continue to pay or receive maintenance.
If the receiving party cohabits with another person (lives with them in a marriage-like relationship), this can also stop maintenance. It will involve a court motion but the payer will argue that now that bills and costs are being shared, the need for extra help from them is no longer required.
As above, the receiving party’s re-marriage is also a triggering event, if they weren’t already cohabiting.
How Is Spousal Maintenance Actually Paid?
More often than not, maintenance is paid monthly. An automatic payment is set up.
In some cases, and only if the money is available, the annual payment can be made in a lump sum.
Oftentimes though, if that sort of cash was available to be paid in one sum, spousal maintenance wouldn’t have been ordered in the first place.
What if the Payments Stop?
Whichever way the agreement was reached – whether in court or through negotiations – once the divorce is finalized, the agreement is legally binding.
The consequences of not following a court order are serious. It’s not something you’d want to mess around with.
If you’re receiving maintenance and the payments stop without reason, you have the ability to apply back to court for enforcement of the court order. If there was no legitimate reason for the payments to stop – it’s likely you’ll also receive your legal costs back from the other person.
On the flip side, if you’re the paying party, your circumstances could genuinely change too – you become unable to work, for example. In that case, you can apply to the court to have the maintenance part of the agreement looked at again.
Tax Consequences of Spousal Maintenance
In most cases, getting divorced is truly a team effort. It seems like an expense at the time, but getting the right expert advice on each section can save you money in the long run.
After new rule changes in 2019 – tax no longer affects spousal maintenance payments. That means that you don’t need to pay any income tax on the payments you receive. On the flip side, it means that the payments are not tax deductible for the person paying.
Having said that, it is always advisable to consult an expert in tax law before committing to any divorce agreement fully.
Ready to Get Some Specific Advice?
You are entwined in your personal finances – it’s your life after all. It’s really hard to stand back and look at the bigger picture when you’re paying bills and juggling everything at once.
Our job as your attorney is to look at your case with a birds eye view. We can spot things that you can’t. We can anticipate issues arising that wouldn’t be on your radar.
Spousal maintenance is a very technical area.
Unbalanced figures have long-reaching effects. And you need a good reason to ask the court to look at everything again. Getting it wrong isn’t one of them.
Working with an expert divorce attorney in Illinois will ensure you cross the tightrope first time with no stumbles and all of your plates intact.
To book a free initial appointment, call (312) 757-4833.