ARTICLES

Factors Determining Maintenance

There are twelve factors set out in the law (eleven, really, and a catch-all "any other factor that the court expressly finds to be just and equitable").¹ No one factor determines whether maintenance will be awarded,² and the judge doesn't have to give each factor equal weight – the judge only has to "consider" each factor.³

The eleven factors Illinois judges are to consider when making (or denying) an award of maintenance include:

The income and property of each party: Under Illinois law, the court must consider the income and property (including marital and non-marital property) assigned to the party seeking maintenance.⁴ The court must consider not only the size of the property awarded to each spouse, but also the property's future income-generating potential as well. Consider, for example, a case where one spouse is awarded the marital residence and the other spouse receives a six flat apartment building of equal value. The apartment building will produce income whereas the house will produce only tax liability, insurance costs, and maintenance expenses.

There are no particular rules or formulas spelled out in the law – each judge is left to his or her own devices when it comes to making these "property-and-income-from-property-vs.-maintenance determinations." What is clear, however, is that a spouse has an obligation to generate income from or use assets if possible and practical.
The needs of each party: Illinois law permits courts to look at the needs of each party – not just the spouse receiving maintenance, but also the needs of the spouse who is supposed to pay maintenance. Where a spouse cannot meet everyday needs, maintenance may be appropriate even if the spouse is employed.⁶ Where the couple lived a very frugal existence during the marriage, such minimum needs will not necessarily be the benchmark by which a court will measure its maintenance award – a more liberal award of maintenance may be justified.⁷ In one oft quoted case, the court commented "The reward of frugality should not be impoverishment."
The present and future earning capacity of each party: This factor helps even things out in couples where one spouse receives property that produces income or is readily convertible to cash. Care must be taken to ascertain the future income earning capacity of any retirement benefits allocated to the spouse receiving maintenance. Too often lawyers and judges overlook the fact that, upon retirement, both spouses will be living off retirement assets – equitably divided at the time of the divorce – and will have no effective income. An argument can be made, however, that retirement income derived from plan contributions or investments made with post-judgment earnings constitutes income not considered by the court at the time of the divorce and is, therefore, a separate income stream from which maintenance may be paid.⁸
The "Homemaker Contribution": Illinois law requires courts to consider the extent to which one spouse has sacrificed his or her career in order to stay at home and maintain the household and rear the children while the other spouse establishes and builds a career. At the end of the marriage, the employed spouse will be able to start a new life with the income, assets, and perks afforded by the career. On the other hand, the homemaker will have few resources with which to build a new life.

Illinois law permits judges to look at the effort and sacrifice of the homemaker as just as much of a contribution to the marriage as the effort and sacrifice of the breadwinner.

The "homemaker contribution" can be VERY significant. Several Illinois cases spell out how a court should look upon the years of sacrifice made by homemaker spouses.⁹ On the other hand, many maintenance claims relying on the "homemaker contribution" fails. In many cases a stay-at-home-spouse can be said to be merely lazy and unproductive. The argument can be made that to award maintenance to a stay-at-home loafer serves only to reward the lazy with an undeserved windfall and to punish the hard working breadwinner. Talk with one of our attorneys to learn more about the analysis of "homemaker contribution" cases by the circuit court that will hear your case to find out how well – or how poorly – such a claim may fare.
The standard of living established during the marriage: This is the factor that everyone remembers from the movies: "... my client must continue to enjoy the lifestyle to which she has become accustomed, Your Honor." Because two households are more costly than one, however, most parties cannot afford the same standard of living they enjoyed as a couple once they live apart. In such circumstances, the court must balance the parties' claims against the available income and assets.
The duration of the marriage: There is no rule in Illinois that ties the duration of a marriage to an automatic award of maintenance. Nevertheless, as a general rule, shorter marriages result in lesser, or no, maintenance awards and longer marriages beget greater, or even permanent, maintenance awards. Illinois courts, however, are often faced with circumstances that call for solutions beyond the general rule. Numerous cases have awarded maintenance for periods longer than the marriage itself.
Whether a party is caring for children: This factor is not as significant as one might think. It usually only applies in cases where children are very young and not yet in full-time school and usually only last until the kids can get into full-time school / day care. Moreover, where one parent provides most of the care for the children, the attorneys usually cooperate to award that parent a combination of child support and maintenance in order to take advantage of certain tax loopholes¹² that benefit both parties.
The age and physical and emotional condition of both parties: This is the factor that usually carries the most weight. In most cases where maintenance is awarded, the receiving spouse is unable to hold a job outside the home in any meaningful way – due either to age or health complications. In fact, some lawyers argue that where one spouse is considerably older than the other, the older spouse should be entitled to maintenance – especially if he or she is too old to maintain a career and the younger spouse is still employed.¹³ Age, however, is not always the heaviest factor. In one noted case, a 32 year old wife was awarded permanent maintenance.
The tax consequences of the property division and the economic circumstances of the parties: Illinois judges have the power to offset deleterious tax consequences with maintenance awards. For example, if one spouse receives property laden with capital gains taxes, that same spouse may receive an additional award of maintenance to help make ends meet and keep the IRS satisfied. Care needs to be taken in considering this factor, however, as the general rule is that maintenance is a tax deduction for the payor and is considered as taxable income to the recipient.
Contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse: Before the 1993 change in Illinois law, this factor was not specified in the law. There was a fairly famous 1986 case¹⁵ where a wife helped put her husband through nine years of medical school, only to be divorced shortly thereafter. Her years of frugality, student-budget living, and contribution to his medical license resulted in nothing and his years of sponging off her gave him a lavish, professional, lifestyle. On appeal, the Appellate court noted that the law did not permit an award of maintenance for such contributions, per se, and had to try to arrive at justice by considering the property division, the child support award, an alternate method of payment, or simply going against the law and increasing maintenance and risking an appeal to the Supreme Court.

Today, the law is different. Illinois law specifically permits courts to consider the contribution one spouse may make to the education or career of the other.
Any valid agreement (a pre-nuptial agreement) between the parties: The court must consider any valid agreement (a prenuptial or post-nuptial agreement) and, usually, courts will enforce such agreements.¹⁶ The fact is that most divorce cases settle and a good divorce lawyer will include a maintenance clause in a settlement agreement when it is advisable. If you are considering including a maintenance clause in your settlement agreement, be sure to work with a good attorney experienced in family law cases. Poor drafting regarding maintenance has led to many, many problems for do-it-yourselfers and attorneys who don't practice family law exclusively.