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Spousal maintenance guidelines become law in Illinois

A new public act dramatically changes how spousal maintenance is determined for divorcing couples whose combined gross income is less than $250,000.

The law, P.A. 98-0961, which was crafted by the ISBA Family Law Section Council, creates a formula for calculating maintenance based on the gross income of the parties and the length of the marriage. Up till now, judges calculated maintenance without using a statutory formula similar to the one that applies to child support awards, instead relying on a list of factors that appear at sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act. As a result, maintenance decisions vary widely, and lawyers have found it difficult to predict what a court will do when awarding maintenance.

The new formula will change that, once a court makes the threshold decision that maintenance is appropriate in a given case. Although judges aren’t required to use the formula, they must make a finding explaining why they did not.

Under the formula, a maintenance award should equal 30 percent of the payor’s gross income minus 20 percent of the payee’s gross income, not to exceed 40 percent of the parties’ combined gross income when added to the payee’s gross. Here's an illustration of how the math works.

Assume the soon-to-be-ex-husband grosses $50,000 a year, and his wife earns $30,000. Thirty percent of $50,000 is $15,000, and 20 percent of $30,000 is $6,000. Subtract $6,000 from $15,000, and voila – the husband owes the wife $9,000 a year in maintenance. Simple enough.

But things aren’t so simple in this example, because that $9,000 payment would push the wife’s annual gross over the 40-percent-of-combined-income limit. How? If you add $50,000 plus $30,000, you get $80,000, 40 percent of which is $32,000. That $32,000 – $2,000 more than the wife’s annual gross – thus constitutes the cap on her income after maintenance. Therefore, the husband in this case owes the wife only $2,000 per year under the formula. (Note that the higher the payor’s income is in relation to the payee’s, the less likely the 40-percent rule is to limit the payee’s award.)

A separate formula based on the length of the marriage establishes the duration of the maintenance award. For example, for a marriage that lasted five years, the maintenance award would continue for 20 percent of that span, or one year. On the other end of the continuum, maintenance could be permanent or last the length of the marriage for a couple that has been married 20 years or more.

“In Illinois, awards of maintenance have become increasingly and disturbingly inconsistent,” ISBA Director of Legislative Affairs Jim Covington wrote in a letter to Governor Quinn before the law was enacted. “Even when facts and circumstances are remarkably similar, maintenance awards vary widely and unpredictably – from case to case, from courtroom to courtroom, from circuit to circuit, from region to region.

“Thus, with the best of intentions, judges, lawyers, and clients are routinely forced to reinvent the wheel with each and every case, wasting valuable time and money of courts and clients,” Covington wrote. “Appellate cases often aren’t as helpful as they should be because only the knotty and contentious cases get appealed – hard cases make bad law.”

Covington noted that the law makes the following changes in addition to the formula:

  • Prevents a judge from ordering unallocated maintenance unless the parties agree to it;
  • Authorizes a judge to permanently bar maintenance for marriages of 10 years or fewer, something that is now only available when the parties agree or maintenance is paid in a lump sum;
  • Specifies that judges must subtract maintenance payments from the payor’s income for purposes of calculating child support.

The bill “doesn’t change the primary judicial responsibility – determining whether maintenance is appropriate” in the first place, Covington wrote. “If maintenance is appropriate, then guidelines can serve as a reference to assist judges and promote settling of cases.”

The law takes effect January 1, 2015.

Posted on Aug 18, 2014 by Mark Mathewson | Comments (3)
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Please note that this Columbus Day the Illinois Chapter will be discussing, inter alia, this legislation as presented by Rory Weiler and Bill Scott. I also had written to the governor -- but urging as veto. It seems that Jim Covington had more pull than I. In any event, for my take on these maintenance guidelines see: http://www.gitlinlawfirm.com/documents/MaintenanceGuidelinesIllinois_000.pdf and http://www.gitlinlawfirm.com/documents/2014LegislationMaint.pdf Overall, the exceptions to these guidelines are a combined gross of $250k and a multiple family situation. The guidelines are mirrored after the support guidelines. I suggest that it is a bit of an overstatement to indicate that the way around the guidelines is to first "determine whether maintenance is appropriate” in the first place. In most cases involving marriages of some significant length and an income disparity, maintenance is appropriate. Because the guidelines are modeled after the support guidelines, they serve a more than as "reference point" since they would require the court to, 1) "state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a)" *** and 2) "(2) if the court deviates from otherwise applicable guidelines *** it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines." This mirrors fairly closely the support guidelines. Now the Illinois guidelines were mirrored on the AAML's guidelines but they had a list of "deviation factors" which would have resulted in the result called for by Jim Covington -- a reference tool -- rather than something more akin to support guidelines which become the virtual norm. Another concern is doing away with maintenance reviews as a result of legislation. And it appears that the legislation was simply drafted incorrectly because it is difficult to imaginer that the length factor should be the length through to the judgment given the huge incentives to meet certain hurdles, especially at 10, 15 and 20 years. I had been a proponent of maintenance guidelines. But I believe these guidelines would represent the worst potential development in Illinois statutory law (in terms of reducing judicial discretion and creating a one size fits all result) since the passage of the IMDMA.
This is more of a question than a comment: If a couple have reached a complete agreement at the outset of their case (i.e., an "uncontested" divorce), and they have agreed that no maintenance will be payable, can they do so? In an "uncontested" case (one which is ready to be proved-up when filed, how (or, "if and how") does the Court make a determination if maintenance is required?
Unfortunately, what this new law does not take into account is what the payor spouse is left to live on. It also creates and extremely long period of, in effect, servitude, 17 years on a 19 year marriage. It sure sounds a lot like one person being forced to work while another person reaps the rewards of that labor. Thought we got rid of that system 100 years or so ago. The cap does not take into account the child support so, I have a spouse earning about 90,000 a year who ends up with about 36,000.00 which isn't enough to pay his own living expenses. The wife keeps her income, child support and maintenance and ends up with more than 2/3 of the total income. There is no incentive for educated spouses to seek employment, such as the wife of one of my clients with a masters in computer science who refuses to work because she would then get less maintenance. The courts that I appear before are not taking this law as a starting point. They are taking it as THE amount of support to be paid. My advice is, if you live in Illinois don't get married. If you want a divorce, convince your spouse to move ANYWHERE else before you do it. There is nothing fair about this law.

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