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maintenance in divorce settlement

What is Maintenance in a Divorce Settlement?

Categorized as Spousal Support

Maintenance, formerly known as alimony, is a relief granted to a party in a dissolution of marriage case that equitably restores to the party a standard of living to which they became acclimated during the marriage.  For spouses going through a divorce in Illinois, questions arise around including maintenance in a divorce settlement. Nothing requires an Illinois Court to award a spouse maintenance, which is why it can be important to have a skilled divorce attorney representing your interests with respect to maintenance during and after your dissolution case.

What You Need to Know About Maintenance

There are some important things to note about maintenance in Illinois, that can be surprising:

Marital misconduct – by either party – is not relevant.

The law is crystal clear here: bad behavior in the marriage does not prevent one party from seeking and being awarded maintenance by the other party.

Maintenance can be awarded against a party’s income or property.

If the Court in your case finds that the party who should pay maintenance has non-liquid assets – like real estate or fine art – a maintenance award can pull from those assets and are not required to be pulled from a bank or savings account.

Gender isn’t relevant.

Many people wonder whether there is any gender aspect to the award of maintenance – as in, is it always the husband paying maintenance to the wife or vice versa?  The answer is an unequivocal NO.  The Court and the law do not care whether you are the husband or the wife, or vice versa.

Factors the Court Considers

There are some important factors the Court will weigh in determining whether to award a spouse maintenance in a divorce.  Although there are 14 total factors specifically listed in the Illinois Marriage and Dissolution of Marriage Act (the “Act”), I highlight just a few for your consideration here:

  • The income and property of each party;
  • The needs of each party;
  • The realistic earning capacity of each party, both now and in the future;
  • The standard of living established during the marriage; and
  • The duration of the marriage.

The right attorney can address each of the statutory factors the Court will need to consider when it considers whether to award maintenance and craft an argument to suit the strengths of each factor.

With respect to the third one I listed, a world of meaning is contained within the word “realistic”.  If both parties are educated and can foresee working and earning a lot of money in the future, then that “realistic” earning capacity is high.  If neither party is educated or independently wealthy, then that “realistic” earning capacity is somewhat lower.  If either party is retired or disabled, that will definitely be a factor the Court will need to consider in considering the propriety of an award of maintenance.

If the party who would be paying a maintenance award, for example, is disabled and cannot expect to earn significantly more than they are currently earning, then the Court is less likely to impose a judgment on them for maintenance for a former spouse who is able of working and enhancing their own earnings.

Is Your Spouse Pursuing An Award of Maintenance?

If you are a party defending against a maintenance award, hiring a spousal support attorney who can thoroughly review the other party’s financial affidavits and pleadings is imperative.

The party bringing a claim for maintenance has the burden of proving they need the money and should be awarded it.  An attorney defending against an award of maintenance should first look at how the party requesting maintenance is spending the money they already have.  If they are going on expensive vacations, and spending a lot of money on unnecessary expenses, then a sound argument can be raised that they should not be living the “high life” to the other party’s detriment.

In these battles, it’s important to have an attorney who can slice through and really read Financial Affidavits, which are documents the parties create to discuss their monthly income and expenses.  An attorney with a critical eye to these documents can very effectively cut into the other party’s request for maintenance by showing that they are not being forthright or intentionally living above their means.

Types of Maintenance in a Divorce

The Act provides for three types of spousal maintenance:

  1. Fixed-term,
  2. Indefinite term, and
  3. Reviewable maintenance.

A fixed-term maintenance award is an amount of money you can expect to receive monthly (or every other week, depending on when the party paying the maintenance is paid), for a set amount of time, usually a matter of years and months.

An indefinite term is an award of maintenance that does not have an end-date on it, and continues until a modification by the Court or termination under Section 510.  A Section 510 award ends maintenance when a party receiving maintenance experiences a substantial change in circumstances, like when they remarry or gain additional income by a significant factor such that they can provide for themselves.

A reviewable maintenance award is quite like a fixed-term award, but the Court sets a time at which the award becomes “reviewable.”  At that point, the Court may extend the award, end the award, or modify the amount of the award.

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