how to determine Alimony in a divorce

Maintenance (formerly known as “alimony”)

In Chicago divorce cases, courts may award maintenance (formerly known as “alimony”) to a spouse who has insufficient income to cover his or her reasonable and necessary expenses. In general, the standard of living enjoyed during the marriage can influence what expenses are reasonable. The first step for the court to consider is whether a party is legally entitled to a maintenance award. The court decides if awarding maintenance is appropriate based upon numerous factors that are listed in the maintenance statute.

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14 Factors that Influence MAINTENANCE IN a Divorce

Factors considered by Illinois courts in deciding whether maintenance should be awarded include:

  • Each party’s income and property
  • Each party’s needs
  • Each party’s realistic present and future earning capacity
  • Whether the party seeking maintenance has impaired earning capacity due to his or her devoting time to domestic duties or having foregone or delayed education, training, or career opportunities because of the marriage
  • Whether the party against whom maintenance is sought has any impairment to his or her realistic present or future earning capacity
  • The length of time that may be necessary to allow the party seeking maintenance to acquire appropriate education, training, and employment, and whether the party seeking maintenance can support himself or herself through appropriate employment, or any parental responsibility arrangements and its effect on the party seeking employment
  • The standard of living established during the marriage
  • The duration of the marriage
  • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties
  • All sources of public and private income, including disability and retirement income
  • The tax consequences of property division upon each party’s financial circumstances
  • 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 between the parties
  • Any other factor that the court expressly finds to be just and equitable

No single factor is given more weight than other factors when determining whether an award of maintenance is appropriate. From a practical standpoint, though, maintenance tends to be awarded more often in longer marriages than shorter marriages.  See section 750 ILCS 5/504(a) in the statute and call The Witt Law Firm, P.C. at (312) 500-5400 if you have any questions about maintenace after a divorce in Illinois.

Determining Maintenance Amount and Duration

MAINTENANCE AMOUNT

If the court decides that a spouse is entitled to a maintenance award it shall then calculate the amount and length of the award. The Illinois legislature created a formula to calculate the amount and duration of maintenance for certain divorces. The statute states in section 750 ILCS 5/504(b)(b-1)(1) that the court shall apply the guidelines if the parties’ combined gross income is less than $500,000 and the paying spouse does not already have an obligation to pay child support or maintenance from a prior relationship. However, if the court finds that the guidelines would be inappropriate in a particular case it need not apply the guidelines for maintenance.

Under the statutory formula in section 750 ILCS 5/504(b)(b-1)(1)(A), the amount of a maintenance award is calculated by taking 33 and 1/3% of the payor’s net income and subtracting 25% of the recipient’s net income. Under the formula, the amount calculated as maintenance when added to the recipient’s net income cannot exceed 40% of the parties’ combined net income.

MAINTENANCE DURATION

Under the formula, the duration of a maintenance award is calculated based on a percentage of the years the parties were married. To calculate the duration, the court takes the length of the marriage at the time of filing for divorce, and multiplies it by a factor. The factor is .20 for marriages of 5 years or shorter in duration. For every year of marriage past 5 years, the factor increases by .04 until the marriage is twenty years or longer in duration. For a marriages of 20 years or longer, the court has discretion to order either maintenance for a period equal to the length of the marriage or for an indefinite term.

THE DIFFERENT TYPES OF MAINTENANCE

One of the changes that went into effect in Illinois in 2019 involved the different types of maintenance. Now, the court must state whether a maintenance award is “fixed-term”, “indefinite”, “reviewable”, or “reserved by the court”. Fixed-term maintenance has a set termination date. Indefinite maintenance continues indefinitely and usually refers to what was formerly called “permanent maintenance”. Reviewable maintenance means there will be a review by the court at the end of a period of time to decide whether the maintenance continues or ends. Reserved maintenance allows the court to decide the issue in the future.

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