These practice area statements are provided by the attorneys from Murphy & Dunn and represent their thoughts on practicing law over the past 36 years in family law. They are not legal advice. They are a general overview of the law, with specific statutes cited for your review, and opinions on how they generally apply in divorce cases in Illinois. Each and every case is different.
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Maintenance is the payment of money from the higher wage earning spouse to the lesser wage earning spouse. If maintenance is found to be proper, it is now based on a formula. However, you still need the best divorce attorney you can find because it makes all the difference in the world how the formula is actually applied and to know all of the nuances in the new statute to get the best result possible. There is a major difference using a qualified experienced family law attorney.
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First, the Court must determine whether the payment or receipt of any maintenance is proper.
That determination is made based on various factors set forth by the divorce statute. Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act generally provides as follows:
(a) . . . the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:
(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;
(2) the needs of each party;
(3) the realistic present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;
(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;
(6.1) the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;
(7) the standard of living established during the marriage;
(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;
(10) all sources of public and private income including, without limitation, disability and retirement income;
(11) the tax consequences to each party;
(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
(13) any valid agreement of the parties; and
(14) any other factor that the court expressly finds to be just and equitable.
Therefore, the Court must first determine if maintenance is appropriate at all before getting to the statutory formulas. This is a prime area to litigate these issues if you are the higher wage earning party that might be paying maintenance. Your first line of attack will be that maintenance is not proper. This is especially true for shorter length marriages. It is also true for women who might be paying maintenance. Although the law is gender neutral, there is a better chance to argue against maintenance if you are a higher wage earning woman who might owe maintenance to a man. It is not fair, but right now that is still the way it is in many judicial decisions. That is why your choice of attorney and law firm is so important. You need the best divorce and family law attorney you can find and we are here to help. Contact us now for your free initial consultation.
Second, if the Court determines that maintenance is proper, the new law provides for a formula approach to maintenance.
In theory this is a fair approach designed to treat everyone the same. In practice, it has dumbed down the law and made for a cookie cutter approach that is often unfair and thoughtless. There are two basic parts to the new maintenance formula: Part one is the amount of maintenance. Part two is the duration of maintenance.
The legal statute for maintenance is Section 504 of the Illinois Marriage and Dissolution of Marriage Act.
Section 504(b-1) provides: Amount and duration of maintenance. Unless the court finds that a maintenance award is appropriate, it shall bar maintenance as to the party seeking maintenance regardless of the length of the marriage at the time the action was commenced. Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance in accordance with paragraph (1) or non-guideline maintenance in accordance with paragraph (2) of this subsection (b-1). If the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline maintenance in accordance with paragraph (2) of this subsection (b-1), non-guideline child support in accordance with paragraph (3.4) of subsection (a) of Section 505, or both.
(1) Maintenance award in accordance with guidelines. If the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.
New divorce cases filed after January 1, 2019
Section 504(b-1)(A) provides: The amount of maintenance under the maintenance statute is calculated by taking 33 1/3% of the (higher wage earner) payor’s net annual income minus 25% of the (lesser wage earner) payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.
This Section is for new divorces filed after January 1, 2019. Maintenance is now based on the net income of both parties, with total income from all sources applied.
The formula takes 33 1/3% of the net income of the higher wage earner and subtracts 25% of the net income of the lesser wage earner, to arrive at a yearly maintenance amount. For example, if the higher wage earner earned $150,000.00 per year and the lesser wage earner earned $25,000.00 per year, the formula would be ($150,000 x 33 1/3% equals $50,000 less $25,000 x 25% equals $5,000 for a total yearly maintenance amount of $45,000). That would be how the initial calculation would be made.
Modification of divorce court Orders from prior to January 1, 2019
Section 504(b-1)(A-1) provides: Modification of maintenance orders entered before January 1, 2019 that are and continue to be eligible for inclusion in the gross income of the payee for federal income tax purposes and deductible by the payor shall be calculated by taking 30% of the payor’s gross annual income minus 20% of the payee’s gross annual income, unless both parties expressly provide otherwise in the modification order. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
Section (b-4) provides: Modification of maintenance orders entered before January 1, 2019. For any order for maintenance or unallocated maintenance and child support entered before January 1, 2019 that is modified after December 31, 2018, payments thereunder shall continue to retain the same tax treatment for federal income tax purposes unless both parties expressly agree otherwise and the agreement is included in the modification order.
These Sections are for modification of prior maintenance awards that are still tax deductible to the payor spouse and included in the income in the payee spouse. However, new case has questioned whether the formula actually applies so you definitely need an attorney to review your case and litigate these issues. There is a huge dispute in the law and its application to prior cases from before January 1, 2019. Contact us now for your free initial consultation.
Duration of Maintenance Award
If you have a maintenance case based on the above, then the court applies a cookie cutter approach to the duration of maintenance based on the length of the marriage.
Section 504(b-1)(B) provides”: The duration of an award under the maintenance statute is calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.
The end result is that despite the best efforts by our legislature, the area of maintenance is still a highly contested and hugely complicated area of the law that requires the use of an expert attorney in family law. There are also many other rules and provisions that apply. Therefore, please do not hesitate to contact G. Edward Murphy and the attorneys at Murphy & Dunn, P.C. to assist you. We are here to help.
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