New Maintenance Law in Illinois Effective January 1, 2015

If you are going through a divorce in Illinois where maintenance or spousal support may be ordered you should be aware of the New Maintenance Law that took effect January 1, 2015.

Here is What Is New:

The Formula: The maintenance new law provides Illinois divorce judges with guideline formulas to apply in determining the amount of maintenance that should be paid as well as for the length of time it should be paid. These formulas apply for divorcing couples whose combined gross incomes do not exceed $250,000. Under previous law, Illinois divorce judges ordered maintenance by looking at a list of general factors to consider including a catch all of "any other factor that the court expressly finds to be just and equitable." These factors were far from the universal mathematical calculation that the new maintenance law provides, and often led to wildly varying results in cases with similar financial situations.

No Court Ordered Unallocated Family Support: The new law prevents an Illinois divorce judge from ordering unallocated maintenance unless the Husband and Wife agree to it.

The Court Now Has Authority to Bar Maintenance in Marriages less than 10 years: The new law authorizes an Illinois Divorce Judge to permanently bar maintenance for marriages of 10 years or fewer, something that has been only available prior to the new maintenance law when the parties have agreed that maintenance was paid in a lump sum.

Maintenance Must be Subtracted from Payors’ Income in Calculating Child Support: The new law provides that judges must subtract maintenance payments from the payor’s income for purposes of calculating child support.

What is maintenance?

Maintenance (sometimes called alimony) is an amount of money determined by the law and your judge to be paid by the higher-income spouse to the lower-income spouse, the purpose of which is to help the lower-income spouse maintain the standard of living acquired during the marriage. Maintenance is usually tax deductible to the paying spouse and taxable as income to the receiving spouse.

How is maintenance determined?

Since 1977, Illinois divorce judges must use a two‑step process to determine maintenance in any particular case.

First Step: The Illinois divorce judge must determine whether maintenance is appropriate or not in your case. The judge must consider a number of factors as required by the applicable statute to make this determination. If the Judge determines that maintenance should be ordered, the second step is considered.

Second step: The judge must decide both the amount and duration of maintenance. Now, for the first time under the new maintenance law, Illinois divorce judges must apply mathematical formulas to determine the amount and duration of maintenance. Keep in mind that the new maintenance law does not change the primary judicial responsibility to first determine whether maintenance is appropriate in a given case.

Do the new formulas apply to every case where maintenance may be ordered?

No, the new formulas do not apply to all maintenance cases. An Illinois divorce judge can use the formula if the combined gross income of the husband and the wife is less than $250,000 and there is no multiple family situation. Notably, the new Illinois maintenance law does not contain a definition of “multiple family situation.” Presumably, it refers to situations where a spouse has a support obligation in one or more prior case. For example, your case is a second marriage, and your spouse is paying child support or maintenance to the first family. See my Article: How New Case Law Develops in Illinois.

How is maintenance calculated using the new maintenance formula in my Illinois divorce?

The amount of maintenance is based upon the combined “gross incomes” of both parties. “Gross income" means all income from all sources and the law then refers to the broad definition of “gross income” under the child support law. 750 ILCS 5\505 (b‑3).

Amount of Maintenance

First Step: Confirm that the combined gross (before tax) income of the Husband and Wife is $250,000 or less. If combined income is more than $ 250,000 the formula for the amount of maintenance does not apply.

Second Step: Apply the formula: Calculate 30% of the gross annual income of the higher wager earner, and then subtract 20% percent of lower wage earner’s gross annual income.

Simply put:

Payor's Gross Income x .30
minus
Payee's Gross Income x .20
equals Proposed Annual Maintenance

Example 1:

Husband earns $100,000 per year and the Wife earns $25,000 per year.

Payor's Gross Income $100,000 x .30 = $30,000
minus
Payee's Gross Income $ 25,000 x .20 = $5,000
equals $25,000 proposed annual maintenance, paid from Husband to Wife, providing Wife with a total of $50,000 of annual gross income.

Third Step: Calculate 40% of the combined gross income of both spouses, because the new Illinois maintanance law disallows the lower wage earner to have a total after-maintenance gross income of more than 40% of the combined gross annual income of the parties:

Husband’s annual gross income: $ 100,000

Wife’s annual gross income: $ 25,000

Total of gross annual incomes: $125,000 x 40% equals $50,000

In this example, because the wife’s income plus proposed maintenance equals $50,000, which is equal to 40% of the combined gross income, the maintenance awarded will be $25,000 under the new guidelines.

Example 2:

First Step: Combined annual gross income is less than $250,000

Second Step: apply formula to arrive at proposed annual maintenance amount

Wife’s annual gross income: $120,000 x .30 = $36,000

Husband’s gross income: $ 80,000 x .20 = $16,000

Proposed annual maintenance: $20,000

Third Step: Calculate 40% cap:

Combined gross income x 40%: $200,000 x .40 = $80,000

In this example, the Husband’s gross income is exactly 40% of the combined gross income of the parties, even before adding in the proposed maintenance amount of $20,000, and the Husband therefore would not be entitled to any maintenance.

While some of this may be confusing, we have made it easy for you to estimate the amount of maintenance you might have to pay or be entitled to.

Under the New Maintenance Law, How Long is Maintenance Paid?

So now that you know the amount of maintenance, you must apply the second formula to determine the length of time you will have to pay (or will receive) maintenance. The duration Formula is a simple math calculation. multiply the length of the marriage by the applicable factor.

For marriages lasting:

Length of Marriage

Factor to Multiply

Length of Maintenance

0 to 5 years of marriage

.2

Example 5 years x.2 = 1 year

5 to 10 years of marriage

.4

Example 8 years x.4 = 3.2 years

10 to 15 years of marriage

.6

Example 10 years x.6 = 6 years

15 to 20 years of marriage

.8

Example 19 years x.8 = 15.2 years

20 or more years of

20 or more years, the court may either make the duration of maintenance equal to the length of the marriage or make maintenance permanent.

Does the New Maintenance Statute change the calculation of Illinois Child Support in a divorce?

Yes it does.

If you are divorcing in Illinois and have minor children, the non-custodial parent will be required to pay child support based on a percentage of the net income of the non-custodial parent’s income, depending on the number of children. For 1 child, child support is based on 20% of net income; 2 is 28%; 3 is 32%; 4 is 40%; 5 is 45%; and 6 or more is 50% - this concept has not been affected.

Prior to the new Illinois maintenance law, child support was generally unaffected by the obligation to pay maintenance. Now, however, any new orders of child support will be reduced if the Father or Payor is ordered to pay maintenance. This is because maintenance payments are deducted from gross income (just like taxes, Social Security, Medicare, health insurance, union dues and other items) before arriving at your net income on which child support is based.

Is an Illinois divorce judge bound to use the formula if my case meets the requirement of combined income less than $250,000 and there is no multiple family situation?

While Illinois divorce judges will generally use the formulas to determine maintenance, they are not required to do so. If the judge decides not to follow the guidelines, the judge must state on the record the specific reasons, called "findings," he or she has for not following the guidelines.

Important tip from a practicing divorce lawyer. The new maintenance law provides for guideline amounts for maintenance. I have practiced family law in Illinois since before Illinois had guidelines for child support. Before the child support guidelines became law, Illinois family law Judges ordered child support on a case‑by‑case basis. Frequently the decisions varied district by district, courthouse by courthouse and even judge to judge. The decisions were inconsistent. When the child support guidelines became law it was thought that they would be rules of thumb or guides to setting child support. Instead they have become more like closely followed rules, so much so that is rare when an Illinois divorce judge does not follow the guidelines. It is my personal opinion that Illinois family court judges will likely follow the new maintenance guideline law in much the same way, honoring the guidelines more than simply using them as rules of thumb.

If a husband and wife are divorcing in Illinois, can they agree that no maintenance will be payable, or does the court make a determination anyway that maintenance is required?

An Illinois divorce judge will allow a divorcing couple Illinois to waive maintenance from each the other so long as the waiver is made “knowingly” and without any fraud or coercion on the part of the spouse that would pay maintenance. Generally, the judges will ask questions of both spouses at a hearing to satisfy himself or herself that both parties have knowingly and freely, without fraud or coercion entered into their marital settlement agreement. There are certainly cases where one spouse threatens or tricks the other into waiving maintenance, but these cases are relatively rare.

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