In Illinois, maintenance (formerly known as alimony) is always one of three different numbers:
- Zero. Because maintenance is not warranted in this divorce case.
- 33% of the payor’s net income minus 25% of the payee’s net income (with payor’s income and maintenance not to exceed 40% of the total of the two incomes)
- An amount appropriate based on the circumstances of the two divorcing parties.
To determine which of these three formulas will be applied in your Illinois divorce case and what number will, eventually, be arrived at as your maintenance payment, the below analysis must occur.
Will There Even Be Maintenance In Your Illinois Divorce?
For every divorce case in Illinois, the court must first find that ANY maintenance award is appropriate.
“In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance following a legal separation…the court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of all relevant factors, including:
(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;(2)the needs of each party;(3)the realistic 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)any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;(6)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;(6.1)the effect of any parental responsibility arrangements and its effect on a party’s ability to seek or maintain employment;(7)the standard of living established during the marriage;(8)the duration of the marriage;(9)the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;(10)all sources of public and private income including, without limitation, disability and retirement income;(11)the tax consequences to each party ;(12)contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;(13)any valid agreement of the parties; and(14)any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504(a)
With 14 possible reasons to award maintenance (one of which is “any other factor”) you have a 99% chance that an Illinois divorce court will find that maintenance is appropriate in your Illinois divorce case. The only question is how much maintenance will you be ordered to pay or receive in your Illinois divorce.
The next question will be whether the maintenance awarded will be pursuant to guidelines or whether it will be a non-guidelines maintenance award.
Calculating Guidelines Maintenance In An Illinois Divorce
“[I]f the court finds that a maintenance award is appropriate, the court shall order guideline maintenance” 750 ILCS 5/503(b-1)
Guidelines maintenance is the official calculation which determines most divorced couples’ maintenance obligation.
“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)
There is a cap on the guidelines maintenance calculation.
“The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)
This means that if one spouse is making more than 50% what the other spouse is making, there will be some kind of maintenance payment.
Furthermore, the 40% total income cap means that a spouse never pays the full maintenance calculation amount unless they are making 300% or more of what the other spouse makes.
While most divorced couples in Illinois will pay the guidelines maintenance calculated amount, there are numerous opportunities to that the court NOT apply the guidelines maintenance amount.
Non-Guidelines Maintenance In An Illinois Divorce
There are a few automatic triggers that allow an Illinois divorce court to abandon the guidelines maintenance calculation.
If the parties to an Illinois divorce make more than $ 500,000, those incomes will deem a guidelines maintenance calculation to be automatically inappropriate.
“If the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with [the guidelines]” 750 ILCS 5/503(b-1)(1)
If there are other child support or maintenance obligations that would render the payor’s income garnished at a rate in excess of 50%, the guidelines maintenance calculation shall be abandoned.
“If the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline maintenance.” 750 ILCS 5/503(b-1)
Outside of those two exceptions, an Illinois divorce court will award maintenance that is not calculated pursuant to the guidelines formula…but only if you ask for it.
“To be clear, [The Illinois Marriage And Dissolution Of Marriage Act] does not mandate strict compliance with these formulas in every case. Rather, the statute provides that the guidelines must be followed ‘unless the court makes a finding that the application of the guidelines would be inappropriate.’ In re Marriage of Brill, 87 NE 3d 302 – Ill: Appellate Court, 2nd Dist. 2017
An Illinois divorce court can award non-guidelines support IF they find a good reason to do so.
“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.” 750 ILCS 5/503(b-1)(2)
The reasons to deny the guidelines maintenance calculation are the exact same reasons to award maintenance that were listed at the beginning of the article.
With a clever and convincing argument, the guidelines maintenance calculation can be avoided and a different maintenance amount should be awarded. The argument will have to be so clever and convincing that the judge must include it as a finding in their argument.
“[I]f the court deviates from 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.” 750 ILCS 5/503(b-2)(2)
This finding by a court is a big step because it leaves the judge vulnerable to appeal. The findings of a judge who issues non-guidelines maintenance may be directly inapposite to the evidence presented. In such a case, the ruling can be appealed.
“An order is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary and not based on the evidence.” In re Vanessa K., 2011 IL App (3d) 100545 – Ill: Appellate Court, 3rd Dist. 2011
“[A] trial court abuses its discretion if it fails to apply the proper criteria when it weighs the facts” Paul v. Gerald Adelman & Associates, Ltd., 858 NE 2d 1 – Ill: Supreme Court 2006
For this reason, Illinois divorce judges are extremely hesitant (in my opinion) to deviate from the guidelines maintenance calculation because the findings required to deviate from the guidelines maintenance calculation are inherently ripe for appeal.
Calculating Maintenance After A Modification
Maintenance is almost always modifiable.
“[N]early all maintenance awards are implicitly reviewable and modifiable.” In re Marriage of Watson, No. 2-21-0137, 10 (Ill. App. Ct. 2022)
Maintenance modifications require a substantial change in circumstances.
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
Once you have a substantial change in circumstances you have an appropriate finding for a court to recalculate maintenance.
“In an adjudicated case, the court shall make specific factual findings as to the reason for the modification as well as the amount, nature, and duration of the modified maintenance award.” 750 ILCS 5/510(c-5)
A post-judgment modified maintenance amount need not be constrained by the guidelines maintenance calculation. There is nothing in the Illinois Marriage and Dissolution of Marriage Act that requires that guidelines be the basis for recalculation.
“Upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed non-modifiable term, extend maintenance for an indefinite term, or permanently terminate maintenance” 750 ILCS 5/503(b-8)
Judges will be inclined to continue to use the guidelines maintenance calculations in their modification decisions…unless you remind the judge that this is not technically required and the finding of a substantial change in circumstances will be sufficient to establish a non-guidelines maintenance award as well.
If you are struggling with how much maintenance you will eventually pay or receive during and after an Illinois divorce, contact my Chicago, Illinois family law firm to schedule a consultation with an experienced Illinois divorce lawyer.
FAQs
How is maintenance amount determined? ›
If the alimony is being paid in the form of monthly payments, the Supreme Court of India has set 25% of the net monthly salary that should be granted to the wife by the husband. In case, the alimony is being paid in the form of a lump-sum amount, it usually ranges between 1/5th to 1/3rd of the husband's total worth.
How is child support and maintenance calculated in Illinois? ›Illinois Child Support New Law
Under the new Illinois child support law, both parents' incomes are considered when calculating support. Thus, child support is calculated based on the combined net incomes of both parents. The old method of using flat percentages based on the number of children is no longer being used.
Illinois laws outline how to calculate alimony. To find the amount paid per month, you take 33.3 percent of the paying party's monthly net income and subtract 25 percent of the other party's monthly net income. But the number cannot be more than 40 percent of both parties' combined net income.
What is the law on maintenance in Illinois? ›In Illinois, the duration of alimony, or spousal maintenance, depends on the marriage's duration. In a marriage of under 5 years, maintenance payments last for 20% of the marriage's length. For a 9-10 year marriage, alimony payments last 40% of the marriage's length.
How much maintenance must a father pay? ›On the basic rate, if you're paying for: one child, you'll pay 12% of your gross weekly income. two children, you'll pay 16% of your gross weekly income. three or more children, you'll pay 19% of your gross weekly income.
How monthly maintenance is calculated? ›The total cost for the month is divided by the overall area of the property, which gives the per sq ft maintenance rate for the month. This is multiplied by the unit area of each home to arrive at individual contributions towards monthly maintenance.
What is the average child support payment in Illinois? ›Illinois puts one child's basic child support level at $1,215 per month; however, this number is a starting point on which additional factors are added or subtracted. Relevant factors must be considered and calculated to understand better what a person may pay in child support in Illinois.
Do I have to pay child support if I have 50/50 custody in Illinois? ›Even when parents have 50/50 parenting time, the court can order either party to pay child support. Child support depends on how much each party makes and the amount of time each party has with the child.
How much of your income goes to child support in Illinois? ›| Number of Children | Supporting Parent's Net Income |
|---|---|
| 1 | 20% |
| 2 | 28% |
| 3 | 32% |
| 4 | 40% |
If alimony is paid on a monthly basis after the Mutual Divorce Procedure, the Supreme Court of India has established a benchmark sum of 25% of the husband's net monthly income as the sum that should be awarded to the wife.
Does maintenance count as income in Illinois? ›
The spouse receiving payments would pay taxes on the spousal maintenance as if it were income. With the TCJA, the spouse making payments now cannot deduct them from his or her taxable income and the spouse receiving payments does not pay taxes on them.
What is spousal maintenance and how is it calculated? ›Spousal maintenance is an amount awarded by the Courts to be paid by the spouse with the higher income to the spouse with the lower income when a couple divorces. It is only awarded if one party cannot support themselves without payments from the other. It can be awarded for a specified term or for life in some cases.
What is fair spousal maintenance? ›Spousal maintenance is appropriate when one of the parties doesn't have sufficient assets or income to cover their daily needs. For example, if your former spouse has a lower income than you or is unable to become self-sufficient right away because they didn't work for most or the entirety of the marriage.
What is the rule of maintenance? ›The idea behind the 10 percent rule is that all preventive maintenance activities are completed within 10 percent of the due date in relation to the PM cadence. When performed on a regular basis, preventive maintenance can help extend the life of your assets.
Can a father refuse to pay maintenance? ›A parent may not withhold payment of maintenance if he or she is not allowed by the other parent to exercise his/her right of access to a child. The flip side of the coin is that a parent may not refuse the other parent access to a child when the latter does not contribute towards the maintenance of that child.
What is child maintenance supposed to cover? ›What should child maintenance payments be used for? Child maintenance payments are designed to cover everyday living expenses for the child. For example, this includes food, housing, and clothing.
Do I have to pay maintenance if I have my child 50% of the time? ›the vast majority of parents assume that the parent who earns more than the other will pay child maintenance. That's not right as under complicated child maintenance law rules if both parents equally share the care of their children neither parent will pay child maintenance to the other parent.
How much child maintenance Do I legally have to pay? ›Assuming you're on the basic rate, you'll need to pay: 12% of your gross weekly income for one child. 16% of your gross weekly income for two children. 19% of your gross weekly income for three or more children.
Does my husband have to pay me maintenance? ›Although no one is automatically entitled to spousal maintenance, there is a common-law duty imposed upon all spouses to support one another during and after any marriage or civil partnership. Who, if anyone, has to pay spousal maintenance will depend on each individual couple's financial situation.
How is maintenance amount decided in divorce? ›Monetary support for spouse
To claim alimony, the wife needs to submit not only evidence of her income and assets before the court but also evidence of monthly expenses and which she ought to make in order to maintain the same standard of living which she would have enjoyed had she been at her matrimonial place.
How the standard time of maintenance is calculated? ›
How to calculate MTTR. The MTTR formula is calculated by dividing the total unplanned maintenance time spent on an asset by the total number of failures that asset experienced over a specific period. Mean time to repair is most commonly represented in hours.
What is the max child support in IL? ›At that maximum net income amount as set forth by the Illinois income shares schedule, the basic child support obligation per the Illinois income shares schedule is $2241 for one child, $3289 for two children, $3821 for three children, $3268 for four children, $ 4693 for five children and $ 5103 for six children.
What is the new law on child support in Illinois? ›The new child support laws in Illinois in 2022 require that the parents purchase or maintain health insurance for the child or children when dealing with a child support matter. This mandate is in effect whenever the parents deal with child support, such as a part of a divorce or a child custody case.
Does child support increase if salary increases Illinois? ›Changes in income for either parent can significantly affect child support payments. If the non-custodial parent's income increases, the court may increase the child support they must pay.
Is Illinois a fathers right state? ›Unmarried or divorcing fathers are often especially concerned about their parental rights and responsibilities. According to the Illinois Parentage Act of 2015, the state recognizes “the right of every child to the physical, mental, emotional, and financial support of his or her parents.
Does Illinois favor mothers in custody cases? ›The courts do not favor either parent based on their gender. Rather, the courts decide the legal and physical custody of the child based on what is in the child's best interest.
What age does a child have a say in custody in Illinois? ›At what age can a child choose who they live with in Illinois? The only set age where someone can choose where they live is 18. In custody cases, children always get to express where they want to live, but the court does not have to rule with the child's wishes.
How much is alimony and child support in Illinois? ›The basic formula for alimony in Illinois is fairly simple: (33% of the payer's net income) – (25% of the recipient's net income) = the yearly maintenance paid. One condition to this is that the amount awarded cannot cause the receiving spouse to earn more than 40% of the couple's combined net income.
Is child support based on gross income or adjusted gross income in IL? ›Illinois child support is calculated using gross income less taxes which equals the net income that determines child support.
Does spouse income affect child support in Illinois? ›Courts making child support decisions in Illinois can and do consider a variety of factors, including a new spouse's income. If you have questions about child support in your own case, you should contact an experienced family law attorney for help.
What is the one third rule for spousal maintenance? ›
The 'one third rule' is a now outdated approach to deciding spousal support in England and Wales. It worked on the principle that both partners' incomes would be added together, with the lower earning spouse being awarded one third of the combined total, minus their own income.
Who qualifies for spousal maintenance? ›Who can claim spousal maintenance? Any spouse to a civil union, whether husband, wife or a same-sex union, may claim spousal maintenance from the other party to the union. No spouse is automatically entitled to spousal maintenance.
Can wife ask for maintenance if she is working? ›The sessions court cited a Supreme Court ruling which said that even if the wife is earning, she is entitled for the determination of maintenance. "Therefore, the submission of arguments from the side of the husband that his wife is an earning woman and she is not entitled to maintenance goes out," the court said.
How can I get out of paying maintenance in Illinois? ›To stop paying alimony, you will need to file a motion to terminate support. You need to file a motion whether time is up on the alimony payments or you want to end it for a different reason. Other reasons alimony can end are if the party receiving the money gets remarried or if either party passes away.
What does the IRS consider maintenance? ›# 3 A Safe Harbor for Routine Maintenance
The repairs are regularly recurring activities that you would expect to perform, and they result from the wear and tear of being used in your trade or business. They're necessary to keep the property operating efficiently in its normal condition.
The law provides that, “[f]or a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.”
How can I avoid spousal maintenance? ›A clean break means that you wish to end all financial ties or claims between you and your ex as soon as possible upon divorce. If you have a clean break, there will be no spousal maintenance to be paid. You can opt for a complete clean break which can include all capital, pension and income claims.
What is the difference between alimony and maintenance? ›Understanding The Meaning Of Alimony And Maintenance
In simple language alimony means: Financial support that a person is ordered by a court to give to their spouse during separation or following divorce. In simple language maintenance means: Financial support provided for a person's living expenses no matter.
Generally speaking, spousal support may not be adjusted or reduced because of a payor spouse's increased income from a marriage or partner. Conversely, when a recipient spouse remarries, it can affect the amount of support being paid depending on how a court evaluates the quality of living standard for that spouse.
What is not considered alimony? ›Some divorce payments aren't considered alimony
These include: Child support. Non-cash property settlements. Payments to keep up the property of the alimony payer.
When can a husband avoid alimony? ›
If you end your marriage within a short period after your matrimonial relationship, you may not be asked to pay alimony to your spouse. The length of the marriage is also considered a criterion for deciding the amount of alimony in many states.
What happens if I refuse to pay spousal maintenance? ›A judgment summons. With a judgment summons the debtor could be sent to prison if they do not pay the amount that is owed to you. However, the judge will only send the debtor to prison if you can prove that the debtor has the funds available to pay you but refuses to do so.
How is spousal maintenance calculated? ›There is no set formula for spousal maintenance and will depend on the financial needs of the parties taking into account the recipient's needs, own income and ability to earn income.
How is wife maintenance calculated? ›Alimony paid on a regular basis – According to the Supreme Court of India, the husband must pay 25 percent of his net salary to his ex-wife, but there is no set rule for the alimony calculator to calculate the exact amount because it varies depending on the judgement.
Can maintenance amount be changed? ›Maintenance to wife under the provision of the Code of Criminal Procedure (CrPC) is not a blanket liability for all times to come and can be increased or decreased on account of change in circumstances of the husband or the wife, Delhi High Court has said.
Can I refuse to pay spousal maintenance? ›Although no one is automatically entitled to spousal maintenance, there is a common-law duty imposed upon all spouses to support one another during and after any marriage or civil partnership. Who, if anyone, has to pay spousal maintenance will depend on each individual couple's financial situation.
Can a working woman get alimony? ›Eligibility to Get an Alimony
In the case of working women, if the court is assured that the wife's earnings are comparatively lower than her husband's, she is also eligible to claim alimony from her husband. The amount is paid to maintain a basic standard of living like her husband.
Grounds on NO maintenance to wife are: Wife living in Adultery. Wife Living separately without sufficient cause. Professionally qualified wife-Capable of earning.
Can a parent refuse to pay maintenance? ›A parent may not withhold payment of maintenance if he or she is not allowed by the other parent to exercise his/her right of access to a child. The flip side of the coin is that a parent may not refuse the other parent access to a child when the latter does not contribute towards the maintenance of that child.
What happens if you can't afford to pay maintenance? ›In that case, they can approach the Maintenance Court in their area for a variation of an existing maintenance obligation, or they can apply afresh for an order to be made on the amounts they can afford," she said.
What am I entitled to when separating from husband? ›
If you're married or in a civil partnership you can ask for financial support from your ex-partner as soon as you separate. This is known as 'spousal maintenance' and is a regular payment to help you pay bills and other living costs. You can't get spousal maintenance if you weren't married or in a civil partnership.