© Can Stock Photo Inc. / zimmytws
One of the most significant changes to the practice of Illinois family law in recent years involved the revisions to Section 504 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) regarding maintenance, effective January 1, 2015. Since that date, the award of maintenance has been governed by a formula for the first time in Illinois history. The change was made in an attempt and with the hope of standardizing the awards of maintenance in Illinois divorce cases.
While the initial hand wringing over the new statute has started to settle down, and judges, attorneys and litigants have been dealing with the new law for over eight (8) months, the Illinois legislature realized the need for some further tweaking of the statute to correct some issues with the old statute and recent rewrite. More changes to the new Illinois maintenance law have been added. This article will summarize the additional revisions to maintenance section of the IMDMA that have taken effect since January 2015.
First, it is important to consider what is not changing. The formula for the calculation of maintenance that became effective on January 1, 2015, remains. Many of the factors the court is to consider when awarding maintenance have not drastically changed. If a person was entitled to receive maintenance before, that person is more than likely still entitled to receive maintenance now.
While most of the factors used to consider whether or not maintenance should be awarded remain the same, two new factors were added. Those new factors are: 1) any realistic impairment to the present or future earning capacity of the obligor; and 2) all sources of income for the recipient, including governmental or other public benefits. These factors are to be considered and weighed together with the other factors in making a determination whether maintenance should be awarded.
In addition to these two “new” factors, the court rewrote and/or added additional language to other existing factors. For example, the prior factors of “age and health of the parties” have been expended to include “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.”
Two other notable changes include adding the qualifier, “realistic”, to the consideration of the earning capacity of the recipient and the added factor, “obligations assigned to the spouses as part of the divorce”. Obligations may include responsibility for marital debt or payment of other support such as child support or college expenses for children.
While the changes are new, Courts and attorneys have implicitly considered these factors in practice in the past when assessing maintenance awards. For example, if person’s child support obligation would greatly reduce his or her available income to live on, judges in the past may have found that maintenance was appropriate for that reason (though it was not explicitly stated as a factor). Further, it has been somewhat common practice in the past, when considering a recipient’s current and potential income, that judges and attorneys would look at what type of employment that spouse could conceivably obtain in the given time frame and the compensation for that employment. If a person is middle-aged and only has a high school diploma, the prospect of going to college, graduating with a four-year degree and making a six-figure income, while not impossible, is not very likely or realistic.
The other changes to Section 504 on maintenance are clarifications necessitated by the prior re-write. In the current version of the statute the formulaic maintenance would not apply if the parties combined income exceeds $250,000 per year and the obligor has a “multiple family situation”. While most family law attorneys I have spoken with understood “multiple family situation” to mean that the obligor has a prior support obligation to be paid, the change makes explicit what was not expressly stated. The recent change strike out the phrase “multiple family situation” and replaces it with: “the payor has no obligation to pay child support or maintenance or both from a prior relationship”.
Another clarification addresses the period of time in which maintenance is to be paid based on the length of the marriage. The current version of the statute has time frames of 0-5 years; 5-10 years; 10-15 years, etc. The overlap of years lead to some confusion for a 10-year marriage. Do we apply the factor for the 5-10 year range or 10-15 year range? The new version clarifies the ranges to read: “5 years or less, more than 5 years, but less than 10 years, more than 10 years to less than 15 years,” etc.
A final change clarifies that the time of the marriage is to be determined at the time of filing of the divorce action and not when the actual divorce occurs. In my experience, judges had been applying the statute in this way already, but the clarification helps ensure a more uniform application and ensures against someone pressing a contrary view.
In summary, the majority of the rewritten maintenance statute that took effect January 1, 2015, remains unchanged. The additional changes passed since that time either clarify those prior changes to ensure uniform application or spell out factors and considerations generally understood and implied by Courts and family law attorneys alike, but which were not explicitly stated.
As the application of the January 1, 2015, revisions are still developing, and as more cases are appealed and appellate decisions begin to be published, the new maintenance provisions may evolve in their effect and application. More changes to the maintenance section may also be necessitated if interpretation or application proves to be problematic. Stay tuned to this blog for future developments as they occur.
Meanwhile future blog articles will tackle the procedural changes to allow expedited, “non-evidentiary hearings” and the new penalties for misrepresentations. We will also address the more sweeping changes to the IMDMA that have been approved, but which will not take effect until January 1, 2016. (For more information on spousal maintenance….)
Roman J. Seckel- Drendel & Jansons Law Group
- 111 Flinn Street
- Batavia, IL 60510
- (630) 406-5440
- (630) 406-6179 fax
- rjs@batavialaw.com
************************************
For more articles on family law topics, see the Drendel & Jansons Family Law Blog.
For family law resources, see the Drendel & Jansons Family Law Resource Page.
If you need immediate help or advice, please contact us.
Thank you for this article Roman. Your article addresses some important changes that need to be considered with the new Illinois maintenace laws. I hope that they will impliment these changes soon.
Roman, thank you for writing this. I read the previous blog pertaining to the new law (posted in 2014) and, while it was very informative, it was prior to the law being in effect and exercised. Now that 8 months have gone by, it’s nice to see some clarifications. I have to say, I’m a little relieved to hear others have the same opinions and struggles accepting this new law. In fact, I hate to say this, but, if I was a guy, I would avoid being married in Illinois at all costs. I digress. However, since I enjoyed reading everyone else’s stories in the previous blog, I’d like to share mine in hopes that it will help others in similar situations and that Roman could possibly help offer me advice/guidance/input.
My fiancee, who was married for 10 years but filed at 8 years, had a previously established alimony payment of $1,000/month for 2 years -reviewable. The 2 year marker was this past June and, sure enough, back to court he goes. We were informed this was a ‘pre-trial’ though and that nothing would be set in stone but it would be the judge’s opinion, or how he would rule the case if it was trial. Regardless, we felt pretty confident knowing the ex had done nothing to better herself/her earning potential and, actually, did the opposite – spent all the money on Disney vacations, Michael Kors purses/shoes, bought a $40,000 SUV (there’s only 1 child…the need seemed silly), got to keep the house as an asset in the divorce which now has $50-60K in equity…all of the things the law says they take into consideration when reviewing alimony. Anyway, the review took place in August (a few weeks ago) and, alas, not only was the alimony extended for 2 more years…it was INCREASED to $2500/month!!! What’s equally aggravating is that the judge didn’t bother to ask what the ex-spouse had been doing in the last 2 years to increase her earning potential…isn’t that the intent of alimony? A temporary monetary support so that one can adjust their lifestyle, learn how to maximize their earning potential and live within their OWN means? The ex has a degree but chooses to work somewhere that does not require one and makes very minimal money because of that decision. She’s another one of these women who sits back, refuses to change her life or move on, and is convinced she’s ‘owed’ the money. OH and she has been working at this place for the last 10 years so it’s not like she stayed at home and tended to the child and domestic duties. She chose this as a profession…now it’s time to choose something that will maximize her earning potential, don’t you think? I guess the bright side of the matter is it’s no longer reviewable after these next 2 years, and, according to the new calculation, he would have had to pay her closer to $4,000/month if they had gotten divorced this year. The process is still so aggravating in that even the courts seem to be forgetting what the intent of alimony is. They list all of these items that are taken into account…who got what asset in the marriage, what the current assets are, what the earning potential is for the seeker, etc., but then they don’t even follow it. The jurisdiction is so corrupt. I digress, again.
So, Roman, my questions to you are as follows:
1) Why aren’t the judges questioning her and asking for evidence that she has been trying to find a better job or one that she could maximize her earning potential? Why haven’t they looked at her affidavit and asked why she’s increased her spending instead of learning to live within her means?
2) Since this was a ‘pre-trial’ and not an official ruling, what if we don’t agree to the judge’s recommendation…what happens next…trial? What occurs in trial that’s different in the pre-trial? Like I mentioned above, It does not appear that the courts actually question the ex in terms of what they’ve done to change. Why are they not being held accountable?
3) If my finacee hires a different attorney (a more aggressive one), goes back to court and says he wants to go to trial, will he go in front of the same judge during that hearing? We were told this is true. If so, we don’t want to p*ss him off…is there a potential he could increase the amount and duration even more than what he originally recommended (in your opinion)?
4) Lastly, at this point, if we can’t fight the monetary value going up (I understand some judges will and some won’t – they’ll stick to the original contract), can we at least fight the fact that he filed at 8 years so, per the new / clarified law, he’s only required to pay for 3.2 years, AND, after already paying for 2 years, he would technically only be required to pay for 1.2 more years? Is this something we could fight for, at a minimum? I would feel MUCH better he only having to pay her for 1.2 more years at $2500 than for the full 2 years. I know it’s only 9-10 less months but that’s actually $24,000. I do realize the opposing counsel could then fight for the actual calculated amount of $4,000/month for the next 1.2 years (which would be similar in total value to $2500/month for 2 years) BUT, my finacee could then have his child support reduced since he net income would been drastically reduced. And, being that child support is a tax break for both parties and alimony is taxed, it sounds like my finacee may have a little negotiating with this piece.
Sorry for rambling. And I appreciate any response!
One more thing – do you represent clients in Lake County? 🙂
On this website we can really only give general statements of the law and there is no attorney/client relationship. That sounds extreme, but there could be other issues or facts involved. We do not handle cases in Lake County. Your fiancee should sit down with an attorney and go over all the facts carefully and get some advice that is specifically tailored to the situation. I wish you and your fiancee well.
Thank you for your questions. I will answer your questions generally, understanding we are not creating an attorney/client relationship and I do not have sufficient information to fully give you advice.
1-2. The review and what the ex should have been doing the last 2 years may depend on the settlement agreement. Sometimes language is included that the receiving spouse needs to show good faith to improve her income and will not receive additional maintenance if they have not made a good faith to improve their income. However some agreements do not have this requirement. As I have not read your agreement, I cannot comment as to her efforts to become more self-sufficient. In terms of her assets, income and budget, while this is a consideration the court will take, different judges balance these differently. Most judges though look at the income and what may be “reasonable” for a person to live on. Remember the pre-trial is just the judge’s recommendations. You do not need to accept the recommendations and can go to trial where you can go deeper into these issues. Typically at a pre-trial, you cannot drill down too much, but not being at the pre-trial, the attorneys may have discussed this. You should ask your attorney why the judge recommended what they did and what they were relying upon.
3. The matter will stay in front of the same judge unless the judge is reassigned to a different call. So if there is a trial, the same judge who heard the pre-trial would hear the regular trial. I would not worry about upsetting the judge by taking the matter to trial, most judges would not be offended by that. Just understand a settlement is almost always better since it is a controlled and known result. At a trial, the judge may award more then he recommended or he may award less.
4. That is a valid argument to make, but I am not sure how the judge would rule. It has been my understanding that judges have not necessarily been applying the guidelines to maintenance awards completed prior to Jan 1, 2015. So the judge may not decide to go with the argument for another 1.2 years. Also, if the judge applies the statute as to the length, it would be reasonable to apply the statute as to the amount, which would dramatically increase the amount to be paid.
To answer your last inquiry, we do not represent clients in Lake County. Our practice is generally restricted to Kane, DuPage, Kendall , Will and DeKalb counties. However, we would consider taking a case in Lake County, but understand we would charge you for the travel time, which would be significant addition to your attorney fees.
I hope this answers your questions. My overall advice though is that it appears you have any attorney so talk with him or her about the pre-trial, what was actually argued and discussed and why the judge came to the recommendations he or she did.
Can you please clarify some items I’ve read in this an another article posted by your firm?
1. Has the amendment that the end date of the marriage goes by the date of filing for divorce (instead of the day the divorce is granted) gone into law yet or is it still pending?
2. Under the new law, is “net alimony” (alimony minus taxes) considered income when determining child support? I will be the primary resident parent, yet am also the breadwinner. I will (probably) be paying alimony, but will be getting child support in return. Will the income my spouse receives from my alimony payment be included when calculating the child support I’ll receive (or deduct from my alimony payment)?