Two months have passed since the new maintenance law took effect In Illinois on January 1, 2015, and Family Law attorneys are beginning to see how Courts are applying the new maintenance guidelines. What is clear is that the guidelines are here to stay and are being implemented throughout the State. Unfortunately, many questions and uncertainties still exist. Below is my early analysis of the new Illinois maintenance law.
Forums on the new maintenance guidelines have highlighted the goal and purpose of the new legislation, which is to make maintenance awards more consistent throughout the state. A more specific impetus for establishing the new guidelines, confirmed by two individuals involved in drafting the new law, was to encourage and require judges in southern Illinois, specifically, to award maintenance or award more maintenance than they have previously awarded in keeping with other areas of the State. It will take some time to know whether these goals have been accomplished, but initial results are proving somewhat inconclusive at this early stage.
One of the initial questions attorneys and litigants asked was whether the new maintenance guidelines would apply to cases that were filed prior to January 1, 2015, but which remained unresolved after January 1, 2015. Would judges apply the old law or the new law? While the new law is clear the guidelines would apply to cases filed after January 1, 2015, it is unclear regarding its effect on cases that were filed beforehand but are still pending as of January 1, 2015.
That lack of clarity has resulted in different outcomes. Some judges before whom we practice have decided to apply the guidelines to pre-2015 cases, while other judges have decided not to apply the new guidelines. In some counties, it may vary on a judge by judge basis. In discussions with other family law practitioners, I have seen arguments and reasoning for both positions. Unfortunately there is no clear answer as of this point and a definitive determination will have to come from either the legislature or the appellate courts.
Another question initially raised when the law passed was whether judges would strictly apply the guidelines or deviate from them. Some speculated that judges would even deviate to reach similar maintenance amounts as were awarded before the new statute was enacted. Judges must follow the law, but the law allows them to exercise some discretion to deviate from the maintenance guidelines, provided they specifically state their reasoning. Judges still have authority to determine whether maintenance is appropriate in the first place, providing they consider and reference to each of the relevant factors in determining whether to award maintenance. Whether a judge applies the guidelines or deviates from them will be determined on a case by case basis depending on the circumstances of the matter.
In the area of child support where guidelines have been in place for years, Judges have been hesitant to deviate from the those guidelines. In the early implementation of the new maintenance guidelines, however, it appears that judges are willing to exercise a fair amount of discretion, both in determining whether maintenance is appropriate and in applying the guidelines to determine the maintenance amount. The greater exercise of discretion employed in regard to maintenance is not completely unsurprising. The public policy and support regarding the imposition of child support in every instance has traditionally been stronger and more certain than the public policy and support in regard to the imposition of maintenance.
A third question that arose when the law passed is whether a court could impute income to the payor of maintenance or the recipient of maintenance. In determining child support, it is well established that Courts may impute income to a party if the judge believes a party is withholding income information or purposely avoiding work or receipt of income to obtain a favorable ruling on support. Judges often impute income to obligors who 1) are currently unemployed and not earnestly seeking employment, 2) are underemployed and not diligently seeking full employment, 3) are purposely earning less income to avoid support obligations, or 4) appear to be hiding income. There is no clear indication in the new maintenance statute that a court may impute income in a similar way (either to the paying spouse or receiving spouse), but informed and experienced pattorneys expect that income may be imputed to parties when calculating maintenance under the new guidelines in appropriate circumstances.
Under the new law, as with the old law, the initial issue to be decided in each case is whether maintenance is appropriate. Applying the same factors and considerations that existed prior to the new maintenance statute, judges still need to make this initial determination. If the judge determines no maintenance is to be awarded, the new guidelines do not even come in to play. If the judge determines maintenance will be awarded, the guidelines must be applied, but they various questions I have explored in this article may affect the outcome. The guidelines were intended to provide some certainty and some consistency in the award of maintenance from case to case and county to county, but many factors may frustrate that purpose from being accomplished.
One point always to keep in mind is that the parties are always free to agree to an amount of maintenance outside of the guidelines if they desire.
While attorneys like to have all of the answers for our clients, we do not always know the answers. With a new law, in particular, it will take time for patterns and accepted practices to emerge. By attending seminars, following legal trends and discussing results with peers experienced attorneys are able to advise clients on what they can likely expect in their matters. Some patterns will take some time to solidly, and some uncertainty will continue until our appellate courts and Illinois Supreme Court have the opportunity to weigh in. Meanwhile, hiring an experienced attorney who knows the judges, their tendencies and the trends in the local area will give you the best and most accurate analysis of your particular situation and the likely outcome for you.
- Roman J. Seckel
- Drendel & Jansons Law Group
- 111 Flinn Street
- Batavia, IL 60510
- (630) 406-5440
- (630) 406-6179 fax
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