Maintenance Modifications and Attorneys’ Fees

Woman holding a finger to her head, she's annoyedIt is not uncommon for the party paying maintenance to want assurance that maintenance (“spousal support”) will terminate after a fixed number of years. Parties can agree that maintenance will terminate.

When maintenance is “reviewable”, meaning it is modifiable at any time and does not terminate but, rather, is reviewed by the court after a certain period to determine if the payee needs continued support, the payor faces the possibility of not only paying more maintenance but also having to pay attorneys fees in the matter.

For any payor who may be on the hook for future maintenance, it is important to know that courts have upheld agreements where parties have agreed that if one of the parties sought to modify maintenance, but was unsuccessful, the party seeking modification shall be responsible for one hundred percent of the other party’s attorneys’ fees. IRMO N.D. & S.D. 2012 IL App (1st) 101876.

Such a provision can also protect the payee. If the payor seeks a decrease, for instance, and the payee has to incur attorneys’ fees defending against why the decrease is inappropriate, the payee could recover those fees if he or she prevails.

Attorneys’ fees and costs are almost always an important consideration in any case and whether or not they may be allocated to the other side should be discussed with counsel.

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