In an Illinois divorce, the length of a marriage often has a major impact on how the parties’ financial issues are decided. In general, this is because a long marriage means that the parties’ lives have been intertwined for a longer period, during which they’ve likely accrued more assets, and possibly debts, than a marriage that only lasted a few years (or less). It’s also more likely that during a long marriage the parties have an established financial agreement within their marriage as to how they have supported each other, which is a critical component when deciding how assets and debts should be divided up. Judges will also look at the parties’ ages, their educations, each party’s earning potential, and their work histories throughout the marriage when determining whether to award property as well as how to divide their property.
“Status Quo” On Financial Matters
When a couple first separates, the judge will first look at the “status quo” of the marriage to determine how the parties handled their finances prior to when the marriage started to break down. Once the divorce proceedings have begun, the judge will order that the status quo should continue to avoid issues where one spouse withdraws their financial support of marital expenses that are typically shared, like a mortgage, utilities, and the like. Based on the couples’ respective incomes, work histories, educations, non-marital assets, and the length of the marriage, a family court judge will make determinations about how to divide up the parties’ assets, namely through an award of spousal maintenance (or not) and the percentage of the marital property allocated to each party.
In addition to financial contributions, the judge will also look at whether one party was providing significant financial support to the other party, most often in cases where one parent stays at home with the children or otherwise has not worked full-time during the marriage in order to support the family. The ultimate goal in awarding maintenance, or not, and dividing the parties’ marital property is to facilitate for both parties to continue to live a life like the one they enjoyed during the marriage, as well as prevent either party from financial hardship.
Maintenance is awarded to a spouse at the judge’s discretion based on a range of factors detailed in 750 ILCS 5/504. Anyone who has been married for a year or longer could be entitled to maintenance, but the length of the marriage determines the length of the maintenance award. So, marriages that last only a couple of months, or a year or two, are unlikely to result in a maintenance award unless there is an enormous disparity in the parties’ incomes. However, parties who have been married five, ten, or more years are more likely to see a maintenance award as part of their divorce settlement.
Based on your current and potential future finances, the length of the marriage, and a host of other factors like age, education, and professional experience, the judge will determine:
- whether an award of maintenance is necessary or appropriate in your case;
- how much maintenance should be; and
- for how long the maintenance should go on.
The judge will focus primarily on the parties’ incomes, namely who earned more during the marriage and what the income-earning potential is for both parties in the future based on their respective educations and professional experience. The greater the disparity between the parties’ work histories and educations, the more likely it is that a judge will award maintenance to the lower-earning party.
For some, maintenance is awarded for a period of years with the specific intention of helping that person gain the education necessary to get a job that will allow them to become financially independent. That is often the case for younger couples where one person has not pursued an education, or a career, in order to allow the other spouse to get their degree, or by dedicating their time to raising the parties’ children. In those situations, the judge is more likely to award maintenance for a period sufficient to allow that person to go back to school to complete a degree, gain additional professional experience, or something similar that will allow them to become financially independent.
However, the longer the marriage, and the older the parties, the less likely it will be that the lower-earning spouse will ever be able to “catch up” to their spouse and become financially independent. In these situations, it makes a maintenance award that much more critical to the lower-earning spouse. If the agreement during a long-term marriage was that only one party would work, the other spouse has an obligation to continue to provide the same level of financial support after the separation.
Impact of the Lifestyle Enjoyed During Marriage
Under the law, both parties have the right to live in a manner like the lifestyle enjoyed by the couple during the marriage. So, the spouse who earned less, or perhaps did not work so that they could be a stay-at-home parent, does not have to forgo the lifestyle that they were accustomed to during the marriage. This is meant to protect the lower-earning spouse from becoming destitute because of the divorce. So, even if you consider you and your spouse to have broken up, that does not mean that you no longer have a financial obligation to them. Your financial obligation to your spouse will not end until you have finalized your divorce and, if maintenance is awarded, that obligation will likely last beyond your marriage, as well.
Length of Maintenance Award
Regarding the length of time for the maintenance award, the longer the marriage, the longer the maintenance obligation. Section 5/504 of the law specifically sets out a mathematical formula used to calculate how long a person is entitled to maintenance that is a fraction of the length of the marriage. The longer the marriage, the larger the fraction. Once a couple has reached twenty years of marriage, or more, the maintenance will either last the length of the marriage or for an “indefinite” period to be determined by the judge.
However, even long-term maintenance awards can be shortened, or reduced, based on changes in the parties’ incomes so long as the maintenance award is reviewable. An involuntary decrease in income, or retirement, could provide sufficient grounds for terminating a maintenance award. Likewise, the remarriage of the receiving party, or their cohabitation with another individual, would also provide grounds for terminating a spousal maintenance obligation prior to its expiration under the statute.
The length of the marriage has a less direct impact on the division of the parties’ property and debts during a divorce. Individuals are not awarded a specific percentage or portion of the marital property based on the length of the marriage. However, the length of the marriage is likely most important in determining what is marital property versus non-marital property and looking at each parties’ contributions to that property. The longer two people have been married, the more likely it is that the property they own is marital property. Marital property is subject to division, even if one party is the only person making any financial contribution to the property.
What Is Considered Marital Property?
When looking at what constitutes marital property, the most important factor is when the property was purchased. Any property, which can include homes but also includes cars, furniture, retirement accounts, and the like, that was acquired during the marriage is marital property—unless it was created with specifically non-marital funds like an inheritance. So, the longer a couple is together, the more likely it is that the property they own at the time of the divorce was acquired during the marriage. It’s also more likely the items purchased during the marriage were purchased with marital funds, which also makes that property divisible. It is critical to understand that even if only one part was financially contributing to the property, i.e. making the mortgage payments, that does not mean the property isn’t marital. Contributions are not solely financial in the eyes of the court—a spouse’s efforts in terms of caring for the children and general upkeep of the home also constitute contributions that will be financially rewarded when the parties’ property is divided as part of the divorce.
Regarding property like retirement accounts, bank accounts, and other financial investments, it is also critical to understand that the funds contributed into those accounts during the marriage are considered marital money, even if they went straight from your paycheck to your 401(k). That includes employer contributions and gains on the account value, as well. So, those accounts are also subject to division, usually equally, in recognition of the fact that those funds were intended to support both parties during their old age.
No Matter The Length of Marriage, Get Advice from an Experienced Family Law Attorney
Perhaps the most important takeaway is understanding that once you are married, the property earned and acquired by you and your spouse during your marriage is shared. Whether that is for one year or thirty years, a duty to support each other financially is created during your marriage that only becomes deeper and more complicated as the marriage continues. No matter the length of your marriage, it is important to have an experienced family law attorney to help you navigate and understand your obligations, and entitlements, under the law in order to best protect your assets as you move forward from your marriage, and into the next stage of your life.