As soon as you Once you file for Dissolution of Marriage, you can request spousal support. A request is made through a Motion filed with the Court asking for an award of spousal support. Generally, the motion is for both temporary and permanent spousal support. You ask for temporary support to get the support payments started during the pendency of the case and ask for permanent support for a final award when the case ends either by Judgement after a trial or Judgement entered by agreement after successful settlement negotiations.
Filing a Motion to Request Spousal Support
Once you file your Motion for Spousal Support, your spouse will have time to respond and then the court will schedule a hearing to determine how much support you should receive on a temporary basis. You can expect 7 days to get the motion before the court, 28 days for your ex to respond, and another 30 days for a hearing to be scheduled. It is important to note that once the court has a hearing and awards spousal support, an award can be granted all the way back to the date you filed the motion asking for the support. For this reason, it is important to get the motion on file as soon as you realize you will be asking for spousal support.
Your Financial Affidivit
In order to file a motion for spousal support, you have to file the motion along with an affidavit setting forth the factual details of your request and produce your financial affidavit and the supporting documents used to prepare your financial affidavit (check stubs, bank statements, tax returns, etc.). A financial affidavit is a snapshot of your financial situation during a period of time and gives the court a benchmark to look at when making a decision about spousal support. The financial affidavit has your income, expenses, assets, and liabilities. Although you have to provide some estimated figures when you are preparing your financial affidavits – such as how much you spend monthly on groceries, household supplies, and gasoline, you must gather the documentation you have for these expenses and provide a good faith-based estimate of the actual amount you spend each month. If a party intentionally or recklessly produces a misleading or inaccurate financial affidavit a court could impose significant financial penalties.
Factors Used to Determine Spousal Support
Once the Court is ready to have a hearing on your motion for spousal support the first thing the Court has to determine is whether or not an award is appropriate. Some of the factors that a court will look at to determine if an award is appropriate are:
- the income and property of each party;
- the needs of each party;
- the earning capacity of each party;
- impairment of earning capacity due to being a stay-at-home mom or delaying education;
- the standard of living established during the marriage;
- the duration of the marriage;
- the age, health, occupation, and skills of each of the parties;
- all sources of public and private income to each party
- the tax consequences to each party;
- contributions by the party seeking support to the education, training, career or career potential, or license of the other spouse;
- any valid agreement of the parties (such a prenuptial agreement); and
- any other factor that the court expressly finds to be relevant.
You can see from the factors that the court will look at to determine if you are eligible to receive an award of spousal support while your case is pending and if you are a stay-at-home mom or dad the court will take that into consideration.
For example, If you have been home with children for several years, the court will not now require you to immediately go out and obtain employment. Some time will be given for any transition back to work that may be required. If you have been a stay-at-home mom but have an advanced degree the court may require you to at some point go back to work, depending on course on your age and health, and your degree. If you have been unemployed for a long period of time during the marriage, again, the court will not require you to immediately go find employment but will review any training and education you have as well as your work history and current health conditions. Many things are relevant when it comes to an award of maintenance.
Court Determines the Amount of Temporary Support
If a court determines that you should receive an award of spousal support based on the factors and review of your motion for support, the parties’ financial affidavits and supporting documents, the court will then proceed to determine the amount of temporary support you should receive during the pendency of the case or if at the end of the case, not only the amount but the duration – how long you will receive the payments. There are support guidelines in place for most cases that once you plug in the income of each party and the length of the marriage, an amount of maintenance is calculated. This calculation is often used during the pendency of the case as a good gauge of the maintenance amount that is appropriate. The calculator is designed to balance the needs of one spouse and the other spouse’s ability to pay.
The Role of Marital Lifestyle in Determining Amount for Spousal Support
Of interest is the marital lifestyle. The law provides that a spouse is entitled to continue to live as close as possible to the standard of living established during the marriage. This is not an easy thing to determine since going from one income and one household to one income and two households leaves it likely that both parties will be living a bit under the standard of living they had become used to during the marriage. In addition, one of the goals of maintenance is to allow the spouse needing maintenance to become financially independent. This can be accomplished by going back to school or obtaining other necessary training to get back into the job market or to obtain better employment. This is not always possible. There are cases where the difference in one spouse’s income compared to the other parties is significant or when one party’s income or ability to earn an income is far superior to the other spouse. So, although the goal is financial independence, sometimes that is not realistic.
Spousal Maintenance is Based on a Formula Set by Illinois Law
How much spousal maintenance you will receive is based on a formula that is roughly 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. This amount, when added to the net income of the spouse receiving the maintenance (if they are working) cannot be more than 40% of the parties’ combined net income. The maintenance duration is calculated by multiplying the length of the marriage at the time the Petition for Dissolution of Marriage was filed by a percentage based on the length of the marriage. As an example, a marriage of 5 years is multiplied by .24 so the duration is 1.2 years; A marriage of 10 years is multiplied by .44 so the duration is 4.4 years; A marriage of 18 years of multiplied by .76 so the duration would be 13.7 years and for a marriage of 20 years or more, the duration is left up to the discretion of the court to be either the actual length of the marriage (20 years marriage is 20 years of maintenance) or for an indefinite term which means until there is a change in circumstances that requires the maintenance to terminate.
If you have questions or concerns about getting alimony, spousal maintenance or another divorce-related issue contact us at Anderson & Boback to schedule your confidential consultation with our divorce attorneys in Chicago to learn more about how soon you can get spousal maintenance once you decide to get a divorce.