The basics of Illinois alimony/maintenance

by Jeffery M. Leving

For some couples, there is an income and property disparity between spouses. One spouse may have a higher-paying job, may have come into the marriage from a wealthy family, or may have worked outside the home while the other stayed home with the children. Traditionally, the husband has typically been the proverbial "breadwinner," but nowadays plenty of wives earn the bigger paycheck.

When such an income disparity is present, family courts will sometimes order that one spouse receive a higher share of marital assets upon divorce in order to level the playing field. In other cases, the property division is kept mostly equitable, with one party receiving spousal maintenance payments from the other.

What is spousal maintenance?

Maintenance, also known as "spousal support" or more commonly "alimony," is a payment from a higher-earning spouse to a lower-earning spouse, in conjunction with a divorce or legal separation, that allows the lower-earning spouse to continue along the same standard of living established during the relationship.

In the past, it was relatively common for courts in Illinois to order alimony on a permanent basis. That largely changed with the enactment of new spousal maintenance laws in 2015. The new rules not only set limits on the amount of time that alimony is payable (which is determined by the length of the marriage), but also provide judges with a statutory formula to use to calculate the amount of payments.

Determining appropriateness and amounts

Illinois maintenance laws are found in 750 ILCS 5/504. The law not only gives guidance about how to calculate the amount of payments via the formula discussed above, but also how to figure out if an award of maintenance is appropriate for a particular couple. This is done by considering a number of factors, including:

  • Relative income and property of each spouse (taking into account the marital property division as well as separate property)
  • Earning capacities
  • Needs of each party (housing, transportation, expenses, special concerns, etc.)
  • Sacrifices of one party that benefitted the other (i.e., if one party stayed home with the children in order to further the other party's career or educational development)
  • Time necessary to allow the person seeking maintenance to become fully self-supporting
  • Standard of living established during the marriage
  • Length of the marriage (the longer the marriage, the more likely it is that alimony will be awarded)
  • Age, employability, health and circumstances of each spouse
  • Tax consequences of maintenance on both the paying party and the recipient
  • Other factors the court deems necessary to make a determination

Once the judge has decided that a maintenance award is appropriate for a given couple, the formula is used to determine the amount of payments. There is a single standard formula for all couples with a combined income of less than $250,000. The formula is, as written, gender-neutral in its application. It takes 30 percent of the paying spouse's gross income then subtracts 20 percent of the receiving spouse's gross income. The remainder between those is the maintenance amount, capped at 40 percent of the total gross income of both parties.

Importantly, judges are allowed to deviate from the guidelines where alimony awards are concerned (in deciding whether payments are appropriate, the duration of payments and the amount), so long as they provide a clear and convincing explanation for why they chose to disregard statutory guidance.

Alimony is often the most highly contested aspect in a divorce proceeding. This is particularly true when emotions run high. Battles over alimony sometimes proceed to litigation even when other contested issues have already been decided amongst the parties.

The fact that the Illinois legislature has acted to provide clear-cut guidance to family courts throughout the state is huge, but this is still a hot-button issue for many divorcing couples. Whether you feel like you deserve maintenance payments or you are arguing against an award, you need to present your case clearly, concisely and persuasively. You need someone like Jeffery M. Leving on your side to argue on your behalf. Call his Chicago law office today at 866-683-9611 or 312-702-0862, or contact them online.