Who is entitled to Maintenance (alimony) in Chicago, and what are the criteria for awarding it?

Who is entitled to Maintenance (alimony) in Chicago, and what are the criteria for awarding it?

By: M. Scott Gordon

As you begin the process of Divorce in Chicago, it’s important to become familiar with the basic principles of spousal maintenance. Below are answers to some common questions about this topic. 

“Maintenance”, also referred to as spousal support or alimony, may be awarded to either spouse. In Illinois, courts don't consider fault, or marital misconduct, in setting the amount of maintenance. Instead, a court will consider other relevant factors, including:

• both spouses’ income and property, including marital property, awarded to both spouses and any non-marital property awarded to the spouse requesting alimony
• the financial needs of each spouse
• the present and future earning capacity of each spouse
• any damage to  the earning capacity of the spouse requesting maintenance due to time spent on  domestic duties (such as childcare), or a decision to delay or give up education, training, employment, or career opportunities because of the marriage
• the time it will take the spouse seeking maintenance to obtain the education, training, and employment necessary to become self-supporting (if the requesting spouse is caring for children, however, the judge may find it inappropriate for that spouse to work)
• the standard of living established during the marriage
• the tax consequences of the property division for each spouse’s economic circumstances
• whether the  spouse requesting alimony made significant contributions to the other spouse’s education, training, or career.

 If both spouses are self-supporting, a court may not award any maintenance, even if one spouse earns substantially more than the other.  One option, instead of maintenance, is for the Court to distribute a disproportionate amount of the marital property (like bank accounts, mutual funds, and any tangible assets) to the lower-earning spouse.

Can I receive temporary maintenance during the divorce proceeding?

Yes. An Illinois court won’t issue a long term maintenance order until the end of the divorce proceedings. So what are you supposed to do if you need financial support while the divorce is still underway? First, you and your spouse can agree to some amount of temporary support. If you cannot agree on this issue, a judge can order one spouse to pay temporary maintenance during the divorce case.

How long does maintenance last?

Short-term rehabilitative maintenance enables the receiving spouse to pay for living expenses while gaining the skills necessary to become self-supporting. Longer-term maintenance may be ordered for a set period and then reviewed again so the court can determine whether it should continue as is, or be increased, decreased, or terminated altogether. A spouse receiving longer-term maintenance is still expected to make good faith efforts (taking into account age, skills, and life experience) to become employed and self-supporting. The idea behind this is that, generally speaking, maintenance payments will be terminated at some point rather than go on indefinitely. However, if a spouse can show a permanent inability to become self-supporting (the person can never obtain gainful employment), a court might order that maintenance payments will continue permanently.  This may be appropriate in very long-term marriages where one spouse has never worked or been out of the work force for decades.

Can the maintenance payment amount or schedule be changed?

It depends.  Spouses in Chicago can agree to make alimony payments non-modifiable or modifiable under specified circumstances, both in regards to amount and length of the obligation.   

In order to change or modify maintenance payments, if they are modifiable under any agreement, the spouse asking the court for a modification will need to show a change in circumstances. This could include an increase or decrease in the ability to pay due to a promotion or a job loss, or a major change in either spouse’s needs. In deciding whether to modify a maintenance award, a court will essentially consider the same factors it considered in setting the original amount. 

Will my maintenance terminate if my spouse decides to retire?

Whether voluntary retirement will justify an Chicago court modifying the maintenance award depends upon the circumstances of the individual case. Relevant factors include the age, health status, motives and timing for the retirement, ability to pay after retirement, and the other spouse's ability to become self-supporting. The issue of retirement, and its effect on maintenance, should be fully considered when negotiating any marital settlement agreement.

Contact a Chicago area Attorney

If you have questions about child custody and what rights you have to see your children pending a divorce, contact the experienced attorneys at M. Scott Gordon & Associates for assistance.