Appellate Court Reverses Termination of Permanent Maintenance

Permanent maintenance is often granted when the parties had a long marriage and there is no termination date in site. However, permanent maintenance does not necessarily mean it can never be terminated. Permanent maintenance can be reviewed after a certain period of time and can be modified/terminated at any time after a finding of substantial change in circumstances.

In In re the Marriage of Bernay, 2017 IL App (2d) 160583, the trial court had ordered the husband to pay wife permanent maintenance in the amount of $3,600 per month. Said maintenance would terminate only upon either party’s death or upon Lynn’s remarriage or participation in conjugal relationship. In 2014, the husband petitioned to terminate wife’s maintenance alleging that his income had decreased and he wished to retire within 12 months. The husband had also been diagnosed with lymphoma which he cited as a basis for terminating the wife’s maintenance. The trial granted husband’s motion to terminate and wife appealed. The appellate court in a recent decision reversed the trial court’s decision to terminate maintenance and reinstated the maintenance award.

The court in Bernay found that permanent maintenance is awarded in cases where the recipient spouse is either unemployable or employable only at an income considerably lower than the standard of living established during the marriage. Furthermore, the court found that even permanent maintenance is modifiable based on a finding of substantial change of circumstances. However, the court found that the trial court had improperly ignored prior court orders regarding the parties’ standard of living. More importantly, the court found that the permanent maintenance award was granted at a time when the parties were in their fifties and retirement was “clearly contemplated” when the permanent maintenance award was granted. Furthermore, the court found that the husband had sufficient assets to continue to pay maintenance based on his extensive real estate portfolio worth approximately $1.1 million, $1.4 million in retirement accounts, and an expectation of $1.9 million from the estates of his recently deceased parents.

This decision seems to solidify permanent maintenance awards and reduce the possibility of a termination unless there are extenuating circumstances that not

only significantly change the financial picture of the parties but that were also not expected at the time the award was made. It is difficult for me to understand how a court could find that a maintenance award when the parties are in their fifties automatically takes into account that at least one of the parties could retire in 10 years. The party could’ve been in their best earning years in their fifties which could’ve led to a very high maintenance award without contemplating retirement. Or, a party could decide not to retire until they are in their 70’s or 80’s, which would make it unfair to take this into consideration when the parties are in their fifties.

Whatever the case may be, it is probably advisable that the parties outline the factors considered in a divorce, or even stipulate that this award does not contemplate retirement. Or, if possible, avoid the term “permanent” and instead focus on making an award reviewable. If you are in this situation, talk to an experienced attorney who can help word a settlement agreement to your benefit.