Most people understand the concept of maintenance, formally known as alimony. The question becomes, what type of maintenance should a person receive from their spouse, and how long should it be awarded?
The recent case of In Re the Marriage of Dea discussed this very issue. The husband Paul, sought permanent maintenance, a type of maintenance that would have no end date.
The couple had been married for twenty-three years at the time of their divorce. The wife, Dana, was making $78,000 a year through her base employment, but Paul suffered from multiple sclerosis and clinical depression. He was on disability benefits from the Social Security Administration making $20,685.00 per year. In the final judgment, Dana was ordered to pay Paul $1,600.00 per month in permanent maintenance.
One factor the trial court looked at, was whether Paul could earn income in the future. Based on his medical condition, the court found that Paul had no present or future ability to earn income and could not be rehabilitated so as to support himself through appropriate employment. Paul was able to demonstrate that his monthly living expenses were $3,800.00, and that he only made $1,723.75 per month.
“Maintenance is designed to be rehabilitative in nature and to allow the dependent spouse to
become financially independent.” In re Marriage of Murphy, 359 Ill. App. 3d 289, 303 (2005). It
is appropriate to award permanent maintenance when it is evident that the recipient spouse is
unemployable or employable only at an income that is substantially lower than the previous standard of living.
Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504(a)(West 2010)) requires that the court consider the following factors when determining whether to award maintenance: the income and property of each party; the needs of each party; the present and future earning capacity of each party; any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties; the time and support necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse; any valid agreement of the parties; and any other factor the court finds just and equitable. 750 ILCS 5/504(a)(West 2010).
“When determining the amount and duration of maintenance, the trial court must balance the ability of the spouse to support him or herself in some approximation to the standard of living he or she enjoyed during the marriage.” social security benefits may be considered in determining maintenance awards.
In this case, Dana argues that the trial court abused its discretion because in determining the maintenance award, it failed to consider that Paul received $24,510 in social security disability payments. The Appellate Court agreed. In reality, given the nontaxable nature of the payments he receives, the actual money available to Paul for his living expenses is actually more than the same figure in taxable dollars. In the trial court’s 12-page written order, although the court acknowledges that Paul receives social security disability payments, the court made no other findings regarding Paul’s nontaxable social security disability payments, nor how they may be a factor in meeting his necessary living expenses. Paul’s federal income tax return recognizes that in 2010, he received $24,510 in social security monies.
While section 504(a) of the Act sets out certain factors as a guide for determining appropriate
maintenance, the court must also be guided by reason and reality. It is sometimes not possible for
each of the parties, individually, to maintain exactly the standard of living which they enjoyed
collectively during the marriage. The amount of income which each party has to meet his basic
living expenses is an important factor for the court to consider.
The ability of the maintenance-paying spouse to contribute to the other’s support can be
properly determined by considering both current and future ability to pay ongoing maintenance.”
In re Marriage of Lichtenauer, 408 Ill. App. 3d 1075, 1088 (2011). The court must consider not
only whether one party needs maintenance, but also whether the other party has the ability to pay
maintenance. In re Marriage of Mantei, 222 Ill. App. 3d 933, 938 (1991).
The Appellate Court reversed the trial court’s ruling for failing to consider Paul’s social security disability payments, and sent the matter back to the trial court so that an adequate number could be recalculated by the trial court.
