I have been talking about maintenance a lot lately. Maybe there’s something in the air. I don’t know. It’s an interesting topic and one that deserves a thorough discussion. I’m going to try to answer the million dollar question “how much will I pay in maintenance?”
The short and precise answer is “I don’t know. Maintenance is discretionary. The court will likely try to provide both spouses with the standard of living enjoyed during the marriage. If that’s not possible, the court will likely try to equitably apportion the deficit.” No one likes the short answer though, so let’s dive into the heavy lifting.
What Is Maintenance?
Maintenance is a sum of money paid from one ex-spouse to the other. Maintenance comes in a variety of shapes and sizes, including
(1) Permanent Maintenance: the ongoing payment of money from one ex-spouse to the other until one of several prescribed termination events transpire, typically death or remarriage (or cohabitating on a conjugal and ongoing basis).
(2) Reviewable Maintenance: maintenance paid for a specified period of time, subject to review by the court. Upon review, a court may extend or terminate the maintenance award.
(3) Periodic Maintenance: non-reviewable maintenance paid for a fixed period of time.
(4) Temporary Maintenance: maintenance paid during a divorce proceeding. That means that temporary maintenance is not the final maintenance award. The final maintenance award comes with the divorce judgment. While a temporary maintenance order may inform a court’s decision about what is and is not a suitable, there is no guarantee that the final maintenance award will be the same as the temporary maintenance award.
(5) Rehabilitative Maintenance: the payment of money from one ex-spouse to the other in an effort to provide the recipient spouse with the necessary funds to secure additional education or training. Rehabilitative maintenance is almost always temporary in nature, as it is designed to facilitate the recipient-spouse’s efforts at becoming self-supporting.
(6) Maintenance in Gross: a “non-modifiable sum certain to be received by the former spouse regardless of changes in circumstances.” In re Marriage of Freeman, 106 Ill. 2d 290, 298 (Ill. 1985).
How Is Maintenance Calculated?
Maintenance calculations are largely discretionary. Section 504 of the Illinois Marriage and Dissolution of Marriage Act provides the list of factors a court is to consider when determining a party’s maintenance obligation:
(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
(2) the needs of each party;
(3) the present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
(5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
(6) the standard of living established during the marriage;
(7) the duration of the marriage;
(8) the age and the physical and emotional condition of both parties;
(9) the tax consequences of the property division upon the respective economic circumstances of the parties;
(10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
(11) any valid agreement of the parties; and
(12) any other factor that the court expressly finds to be just and equitable.
OK, How Will Those Factors Affect My Maintenance Order?
It’s best to start from the court’s underlying goal. As stated earlier, maintenance is the court’s tool for providing each party with the standard of living enjoyed during the marriage. If that is not possible due to financial constraints, the court will try to equitably apportion the deficit. If the couple has enough money that they can afford to divorce, maintain separate households, and not experience a decrease in their standard of living, then the maintenance award is somewhat easy to figure out. This is especially true if the marriage was relatively long and if one spouse made sacrifices during the marriage that decreased his or her earning potential.
Maintenance awards become a bit murkier when we talk about shorter marriages or the earning potential of the parties or the parties’ respective needs. Additionally, these factors are all relatively subjective. For instance, the earning potential of each party can only be estimated based on the education and experience of the parties, as well as the strength of the job market in their desired field. While data are available, the interpretation of said data will be left to the court.
The standard of living enjoyed by the parties is straight forward if the parties didn’t use credit cards, but it becomes a bit harder to determine if the parties took on debt to finance a higher standard of living than they could afford. In this scenario, objective factors like the cost of a mortgage or an annual vacation no longer reflect the parties’ true standard of living, but rather an inflated and unsustainable standard of living. Additionally, a review of the parties’ cash flow may be misleading due to payments towards larger-than-average debts.
Can I Give My Spouse All Of The Marital Property To Avoid Maintenance?
It depends. It depends on what the property is valued at, what your spouse would have received via a property distribution without maintenance considerations, and it depends on what your maintenance obligation would have been. A judge may offset a maintenance award with a greater distribution of property. This may may significantly reduce or eliminate your monthly maintenance obligation. However, a judge does not need to offset a maintenance award with a property distribution. Like much of family law, it is subjective.
Do I Need To Hire A Lawyer If My Case Involves Maintenance?
The answer is a qualified yes. I think that many people can handle their own simplified divorce (no kids or real estate, no significant debt, and limited financial transfers). Maintenance is sort of on the cusp of what you need a lawyer to review. For one, you want a lawyer to make sure the maintenance award is reasonable, both for the payor and the recipient. Secondly, maintenance can be an emotionally charged issue and a lawyer will be able to assess the situation, removed from the couple’s dynamics. Last, should the maintenance issue wind up in court, you will certainly want a lawyer to help you litigate.
As always, please don’t hesitate to contact my office with any questions you have.