In Illinois, money that one spouse pays the other spouse during and/or following a divorce is called maintenance. Candace Meyers, a Chicago family law attorney, educates listeners and answers commonly asked questions about maintenance, including who is eligible to receive maintenance, how long does someone have to pay maintenance, how much can someone receive in maintenance, and how is maintenance paid from one spouse to the other.
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Hosted by: Dan Couvrette, CEO and Publisher of Divorce Magazine
Guest speaker: Candace Meyers, Family Law Attorney
Candace Meyers, a family law attorney at Boyle Feinberg, P.C., has been practicing family law exclusively since 2004 and has the experience, financial acumen, and analytical firepower it takes to handle any high-net-worth and/or business owner’s divorce. She will custom design and execute a strategy that ensures no stone is left unturned. For more information about Candace and her firm, visit www.bffamlaw.com.
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Read the Transcript of this Podcast Below.
What is maintenance?
Maintenance is the legal term in Illinois for what used to be called “alimony” or “spousal support.” It’s a sum of money that one spouse will potentially pay to the other to assist them in supporting their day-to-day living expenses.
Who gets maintenance?
The spouse who gets maintenance is the spouse who is unable to support themselves. This could be either after the dissolution proceedings or during, as it would be called “temporary maintenance”. If a spouse is not able to support themselves through their own income or through assets at their disposal, a court may order that the spouse, the “moneyed spouse” is what we call it, has to pay the other spouse maintenance.
It isn’t automatic. The court will determine a variety of factors that are set out in the statute. For example, the court will consider the income and assets available to both parties; what the needs are of each party; if there’s any impairment to the present and future earning capacity of the party who’s seeking maintenance; the time necessary to enable the party seeking maintenance to acquire certain education or training; the standard of living that’s established during the marriage; the length of the marriage, which in our statute we call the “duration of the marriage”; the age, health, and occupation of the party who is seeking maintenance. Another example of a factor is the contributions by the party seeking maintenance to the education or training of the other party.
Is it always the case if one spouse earns less than the other that they would get maintenance automatically?
Not necessarily. If one spouse earns $150,000 and the other spouse earns $120,000, the spouse earning $120,000 would not necessarily get maintenance from the spouse who earns the higher amount. In our statute, the guidelines set forth that if after making the guideline calculation the spouse who’s seeking maintenance would receive more than 40% of the total gross income of the two parties, then they would not be a candidate for maintenance.
Do only wives get maintenance, or are husbands eligible as well?
No, it can be husbands, it is not gender biased. It could be a husband from another husband, it could be a wife from another wife, it can be a wife to a husband, a husband to a wife. It is based upon the income and the assets of the parties who are seeking maintenance from the other.
How long does someone have to pay maintenance?
The duration of maintenance is based upon guideline factors. Prior to 2015 there wasn’t a statutory guideline and the judge just could make a determination and use their discretion. But now there is a guideline. For instance, in Illinois, if parties have been married five years or less, they get 20% of the time they’re married. If their parties are married more than five years, but less than 10 years, they would get 40% of the time they’re married. If the parties are married 10 years but less than 15 years, they would get 60% of the length of the marriage; if they’re married 15 years but less than 20 years, they would get 80% of the length of the marriage.
20 years and more is kind of the sweet spot where a party would receive what we call “permanent maintenance,” or it would be equal to the length of the marriage. If they’re married for 21 years, they would potentially receive maintenance permanently or for 21 years after the dissolution of marriage. The determination of how long the parties are married actually makes a big difference when you’re looking at those interim time periods. For example, the 10 or 11 years will make a big difference on how they will receive the maintenance.
What is the difference between maintenance and child support, or are they somehow connected?
Maintenance is support for a spouse. They can use that for daily living expenses, but it is taxed to the spouse who’s receiving it and it’s a tax deduction for the spouse who is paying it – that is one of the biggest differences.
Child support, on the other hand, are funds paid to the parent who has the children the majority of the parenting time. Child support is not taxable to the parent who’s receiving it and the child support is calculated based on net income, whereas for maintenance the calculation is based on gross income because taxes come into play. The payor spouse again takes the tax deduction and the payee spouse is taxed on the maintenance. For child support it will generally terminate when the child turns 18 or graduates from high school, and with maintenance it will most likely be based upon the guideline – which is the number of years you’ve been married, and it may or may not be linked to the age of the children.
How does the judge determine whether someone receives maintenance?
If I were representing someone who is seeking maintenance, I would want to focus on the factors that I talked about before. I’ll talk about the fact that my client spent years and years helping the payor spouse become a very successful business person or a very well-known surgeon. I will try to focus in on the standard of living that the parties have established throughout the 20-plus-year marriage – they drove luxury automobiles and they belonged to country clubs. I will focus on that standard of living because the payee spouse is entitled to a like standard of living.
On the contrary, if I represent the moneyed spouse, I will focus on the fact that the spouse seeking maintenance is young, is able to work, and should get back into the workforce, become self sufficient, and is no longer needed to raise the young children, as the children have graduated from high school and are off to college. The spouse seeking maintenance is well able to support themselves, whether it’s through income or through assets that are awarded. The judges are supposed to first consider the factors of maintenance and then they move on to the guidelines.
What you’re pointing to, I think, is that it’s really important to work with a family law attorney who has lots of experience. Does that ring true for you?
Yes, I believe it’s very important, especially in my cases where I have been representing folks on both sides of the argument. I’ve represented spouses who are successful business owners, small business owners, or they are successful physicians, successful entrepreneurs who get up every morning out of bed and work hours upon hours to create a grand estate for the parties; a great lifestyle for the parties. I have represented the flip side where the spouse has been a beneficiary of the efforts of the successful spouse.
Having the experience of representing either the moneyed spouse or the maintenance-seeking spouse helps a lot when I’m representing my clients who are in those positions.
Can you receive maintenance during the case?
Yes, and that is what we call “temporary maintenance”. For example, if a case begins and the party who is working stops depositing income into a joint bank account, then the party who is seeking maintenance may not have access to the income. He or she would go into court and ask the judge to award temporary maintenance. On the flip side, if a spouse earns a significant income and the spouse who is seeking, in the other spouse’s opinion, is not spending it appropriately, then they may not give them free access to the expensive income and getting a temporary award of maintenance would kind of curtail the spending and preserve the marital estate.
How much can someone receive in maintenance?
The calculation is based upon our statute if they fall within the guideline requirement. Under our current guideline, if the combined gross income of the parties is less than $250,000, then the calculation is based upon 30% of the payor’s gross income, less 20% of the payee’s gross income.
For example, if the payor is earning $180,000 in gross income and the payee is earning $30,000 in gross income, 30% of the $180,000 is $54,000. You subtract that from 20% of the $30,000, which is $6,000. The annual figure is $48,000 or $4,000 per month. Again, this is gross, so the individual who’s paying the maintenance would be able to take that $48,000 as a tax deduction from their $180,000 gross income. Likewise, the person who’s receiving the maintenance would have a taxable income in addition to their $30,000 of $48,000 of taxable income.
What if the spouses combined their earned $250,000?
Right now our guideline is limited at $250,000. There’s been some chatter about the legislature increasing that to $500,000, but at this point it’s $250,000. If the combined is above that, then the Illinois guidelines do not apply and the courts may use their discretion to make an award.
I have had some judges who use the guidelines as their discretion and they do the calculations based upon the 30% minus the 20%. I have had judges who, with an extensive lifestyle, have given a greater percentage or a lesser percentage just based upon the discretion they use in laying out the factors.
Again playing to the importance of working with a family lawyer who has lots of experience in this area, because you need to know the judges as well as the law, right?
Absolutely. I can sit here today and think about which judges will make certain recommendations based on the length that they’ve been sitting in the circuit court. A number of them have been sitting for 20-plus years and they have made maintenance awards way prior to the guidelines in this new statute going into effect, so you kind of knew where they were going to fall. They may make a larger percentage award based upon the length of the marriage. If the marriage was 30 years, there are some judges who would award 50% of the income.
On the other hand, judges who are sitting for a long time may have awarded 30% of the income. It just depends on the factors and the lifestyle of the parties and the contributions that both parties make. That’s where the judge’s discretion comes into play, and kind of knowing your facts really well, the case law very well, and the judges that you’re appearing in front of.
How is maintenance paid from one spouse to the other?
I’ve had clients pay maintenance or be paid maintenance in a variety of different ways. It can be as simple as a monthly cheque to the other spouse. It could be an automatic direct transfer, a wire transfer from one bank account to another. It could be a withholding where the spouse who’s paying maintenance will direct his or her employer to pay it directly to the other spouse, or it can be made through the state disbursement unit, which then the state would keep a counting of what has been paid.