While many blog articles of late have dealt with the new child support statute in Illinois, the modification to the maintenance statute that went into effect on January 1, 2015, is still a topic that generates a lot of discussions. This is especially true now as many cases decided under the old law are now coming up for maintenance reviews or modifications. One of the critical questions we are asked is whether or not courts will apply the maintenance formula to cases decided prior to the new law going into effect.
It is important first to know that modifications and reviews of maintenance are controlled by a different statute than the one that originally establishes the right to maintenance. For those that wish to read the actual statutes, the maintenance statute that is used to set an initial maintenance award is 750 ILCS 5/504. The statute used for modifications or reviews of maintenance is 750 ILCS 5/510(a-5). For more information on how the original maintenance obligation is determined, please see our prior blogs on the new Illinois maintenance rules.
If the maintenance award is modifiable (which in most cases it is), a petition requesting modification can be filed at any time, by any party. When seeking a modification, before getting to the issue of what the new maintenance amount should be, the petitioner (person making the request) has the burden to prove that a substantial change in circumstances. If no substantial change has occurred, there maintenance cannot be modified.
A substantial change in circumstances is a significant change in the circumstances of one or both parties since the date when maintenance was set or modified. Some examples of substantial changes in circumstances include increased income at work, loss of employment, new employment or retirement. The change can be related to the recipient of maintenance or the payor of maintenance, or both.
Absent a substantial change in circumstances, the petition would be denied. If a substantial change in circumstances exists, the amount of maintenance will be decided by considering two sets of factors: 1) the factors listed in the statute used to set a maintenance award in the first place; AND 2) the factors under the modification statute. Without going into detail for each factor, the general factors include the lifestyle enjoyed during the marriage, income of the parties, access to other assets, good faith efforts to find employment, the health of the parties and tax consequences of the maintenance.
Maintenance can also be re-examined if an original order or modification order makes maintenance reviewable. If maintenance is reviewable by court order, the order may use phrases such as the following: “maintenance shall be reviewed….”; or “a review of maintenance shall be on [such and such a date].” Maintenance is made reviewable by court order, there is no requirement for showing a substantial change in circumstances. Rather the court will review (take a fresh look at) the maintenance award. Even so, the court will usually consider the circumstances of the prior award and determine if maintenance should continue, be terminated, increased or decreased based on the circumstances at the time of the review.
Although a change in circumstances is not the driving factor when maintenance is reviewed, the court will consider whether any change has occurred or should have occurred. Depending on the wording of the divorce decree or settlement agreement, the recipient of maintenance may have some burden to show an effort at becoming self-sufficient since maintenance was established or last modified. If the party receiving maintenance has made an appropriate effort to become self-sufficient, a court may continue maintenance even if there has been no change in circumstances.
If you have reviewable maintenance, you should review your divorce decree or settlement agreement as there may be time-frames in which you must file for your review. Reviewable maintenance is not necessarily automatic. You might have to seek a review by filing a petition, but you won’t have to prove a substantial change in circumstances in order to establish your right to have maintenance reviewed, if the court order makes maintenance reviewable.
This brings us to the key question, does the old statute apply to maintenance review cases or does the new statute apply? First, the change in the statute has consistently been held not to be a substantive change, in itself, and will not be applied retroactively. What this means is that the new formula will not be applied to recalculate maintenance in cases decided prior to January 1, 2o15. The new maintenance statute and formula only apply to cases decided after its effective date. So if you had a maintenance award established after January 1, 2015, your reviews and modifications of maintenance will be subject to the current law, and more than likely the maintenance formula will be continued to be used.
If your maintenance was finalized prior to January 1, 2015, however, the new maintenance formula will not be used in any modifications or reviews of maintenance. In considering petitions to review or modify maintenance in these cases, the court will just look at the circumstances and facts considered when the original maintenance award was established and what has changed, if anything. The new maintenance amount will be determined after considering these facts. For example, if the maintenance amount was set so as to equalize incomes between the parties, the court will likely will try to maintain an equalization of the incomes on review or petition for modification.
Keep in mind, though, that the fact that the new maintenance is not retroactive does not prohibit the court from considering the new maintenance formula to see if the amount of maintenance to be paid is fair and reasonable. Courts are not required to apply the new formula, but courts are also not prohibited from taking the new formula into account in determining what is fair and reasonable.
Overall, while the new maintenance law has changed the way maintenance is awarded, applying a formula that takes some of guesswork out of it, the new law does not entirely replace the old law. If you or your former spouse are considering a review or modification of maintenance, please fee free to contact us to discuss your options and obtain the legal representation you need and deserve.
- Roman J. Seckel
- Drendel & Jansons Law Group
- 111 Flinn Street
- Batavia, IL 60510
- (630) 406-5440
- (630) 406-6179 fax
For more articles on family law topics, see the Drendel & Jansons Family Law Blog.
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