Divorce can be a messy affair, even when both parties work together amicably. There are a number of services, accounts and assets that need to be split as equally as possible. If one spouse makes significantly more than the other, he or she might even be required to pay maintenance to the ex-spouse.
What is Maintenance?
Maintenance is known by several names, including “alimony,” “aliment” or “spousal support.” No matter the terminology, they all mean the same thing. During or after divorce proceedings, if there is a significant difference in the income and earning potential between the separating spouses, a judge may order the more prosperous spouse to contribute to the other’s expenses. The purpose of maintenance is to minimize the financial effects of a divorce, especially for spouses who may have chosen to forgo professional experience in order to support the family. Theoretically, both parties should be able to maintain the same standard of living they had during marriage.
How is Maintenance Determined?
A number of factors determine how much maintenance should be paid and for how long. In Illinois, the following maintenance guidelines have been adopted (750 ILCS 5/504):
504(b-1) Amount and duration of maintenance. If the court determines that a maintenance award is appropriate, the court shall order maintenance in accordance with either paragraph (1) or (2) of this subsection (b-1):
- Maintenance award in accordance with guidelines. In situations when the combined gross income of the parties is less than $250,000 and no multiple family situation exists, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.
- The amount of maintenance under this paragraph (1) shall be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
- The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.
Let’s look at how these guidelines work. If a couple has been married for 14 years, and their aggregate gross income is $220,000.00 (spouse A earns $180,000.00, and spouse B earns $40,000.00), the terms of 750 ILCS 5/504(b-1)(1) will apply. When we apply the guideline maintenance formula under subparagraph 504(b-1)(1)(A) of the new statute, the result will be as follows:
- Payor’s annual gross income: $180,000.00
- 30% of payor’s gross income: $54,000.00
- Payee’s annual gross income: $40,000.00
- 20% of payee’s gross income: $8,000.00
- $54,000.00 – $8,000.00 = $46,000.00
Combined gross income of the parties:
- $180,000.00 + $40,000.00 = $220,000.00
- 40% of combined gross income: $88,000.00
- Maintenance ($46,000.00) +
- Payee’s gross income ($40,000.00) = $86,000.00
Maintenance and payee’s gross income is less than 40% of the parties’ combined gross incomes, so therefore, under the new statute, annual maintenance payments of $46,000.00 would apply.
In order to determine how long Spouse A must pay maintenance to Spouse B, we apply the multipliers described in subparagraph 504(b-1)(1)(B) of the statute. Marriages of 10-15 years have a multiplier of .6. So, a marriage of 14 years will result in maintenance for 14 x .6 years, or 8.4 years.
If the guidelines do not apply, however, the courts will consider at least some of the following factors when making their decision about awarding maintenance:
- Age/physical condition, emotional health and financial situation of the former spouses
- How long the potential recipient would need to become self-sufficient
- The length of the marriage
- The spouses’ standard of living during the marriage
- How much the paying spouse would be able to contribute while still supporting themselves
Do They Have to Pay?
Maintenance enforcement is not as aggressive as child support enforcement, which can include actions like garnishing wages. However, an official maintenance court order is still legally enforced. If your spouse refuses to pay, for any reason, you can take immediate legal action by returning to court for a contempt proceeding or filing a Notice of Withholding and serve it on the payor’s employer.
Spouses paying maintenance are often required to give as much money as they could potentially provide or reasonably earn, even if they are underemployed. For example, if a spouse who makes $50,000 a year decides to quit his or her job and find a position that pays only $35,000, a judge might decide to base the maintenance payment on the $50,000 salary. Even though the spouse would be making less, he or she is physically able to secure a higher paying position and is expected to provide for the ex-spouse based on that amount.
Spousal and Family Law in Illinois
At Conniff Law Offices, we believe your attorney should be invested in your family’s welfare. We understand that your domestic circumstances are unique, and your legal strategy should reflect that. Our expert attorneys have years of experience in divorce, parentage and premarital cases. Contact us today for more information or to schedule a case review.