Factors Determining Maintenance

by Wes Cowell; updated 11 April 20177 -- suggest a correction.

 

Illnois uses a formula to determine the AMOUNT of most  maintenance awards but relies on thirteen factors to determine WHETHER maintenance will be awarded.  The factors changed with the 1/1/2016 overhaul of the law.  Need advice? Callleave your info, or schedulescheduleschedule a consult.

 

There are fourteen factors in the law (thirteen, really, and a catch-all "any other factor that the court expressly finds to be just and equitable") that the court MUST consider in each maintenance case.  Although the maintenance law was changed in 2015 to include a formula to determine the amount of some maintenance awards, trial courts still must look to the thirteen factors to determine whether maintenance should be awarded.  Once that threshold question is answered in the affirmative, then the court MUST either

  1. apply the formula,

  2. apply the formula and allow a deviation, or

  3. consider the factors to determine the amount and duration of the award.

 

No single factor determines whether maintenance will be awarded.  In re: Marriage of Harlow, 251 Ill.App.3d 152, 190 Ill.Dec. 476, 621 N.E.2d 929 (4th Dist., 1993); In re: Marriage of Chapman, 285 Ill.App.3d 377, 674 N.E.2d 432, 220 Ill.Dec. 889 (3d Dist., 1996). The judge need not give each factor equal weight – the judge only must consider each factor.  In re: Marriage of Miller, 231 Ill.App.3d 480, 172 Ill.Dec. 679, 595 N.E.2d 1349 (3d Dist., 1992).

 

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

 

1.  The income and property of each party: Under 750 ILCS 5/504(a)(1), the court must consider the income of, and property assigned to (including marital and non-marital property), each party.

 

Income-Producing Property:  The court must consider not only the size of the property award granted to each spouse, but also the property's future income-generating potential or cost to maintain or rehabilitate.  In re:  Marriage of Grunsten, 304 Ill.App.3d 12, 709 N.E.2d 597 (1st Dist. 1999).  Consider 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.  Income Producing Property:  A spouse awarded income-producing property has an obligation to generate income from such assets, if possible and practical.  In re: Marriage of Thornton, 89 Ill.App.3d 1078, 45 Ill.Dec. 612, 412 N.E.2d 1336 (1980).

 

Imputing Income in Maintenance Cases:  The court is to consider the income a spouse is able to earn, not merely the income a spouse is willing to earn.

 

In re:  Marriage of Blume, 2016 IL App (3d) 140276.  Brad and Tami Blume married in 1995, had a child in 1996, and divorced in 2012.  Brad was a farmhand earning $42,000 and the family lived rent-free in a home owned by Brad's employer.  Brad also ran his own farming operation in 2009 and 2010, earning between $70 - $80,000 each year.  He stopped doing that, however, when it came time to plant crops in April, 2011 -- Tami had filed for divorce April 18, 2011.  What a coincidence.

 

Brad argued that farming varied from year to year, 2012 was a notoriously bad year for Illinois farmers, and his future earning abilities were speculative.  He claimed the court should look only at his $42,000 / year (netting about $2,600 / month) wages.  Tami said Brad could do the farming but was purposely driving down his income to minimize his maintenance obligation.  The court sided with Tami, making specific findings that:

 

  • Brad admitted to making ‘absolutely no effort to begin farming again, refused to commit to any future plans, and gave no credible reason for his failure to attempt to farm;’

  • during his period of not farming, Brad relied on his parents for the purchase of a car and new appliances and failed to overcome the presumption of “gifts” for those purchases – in other words, it looked like he wasn’t making enough to get by, could have farmed but didn’t, and instead relied on his parents to make ends meet; and

  • “Brad’s decision to quit independently farming was voluntary . . . .”

 

The trial court imputed the farming income to Brad, and set maintenance at $2,000 / month.  Brad appealed.

 

The Third District Appellate Court affirmed, saying:

 

The ability of the maintenance-paying spouse to contribute to the other spouse's support can be properly determined by considering both a current and future ability to pay ongoing maintenance.  In re:  Marriage of Lichtenauer, 408 Ill.App.3d 1075, 1089 (3d Dist., 2011).  Courts should consider the level at which the spouse is able to contribute, not merely the level at which he is willing to work.  Id. at 1088.  For the purpose of imputing income, a court must find one of the following:  (1) the payor has become voluntarily unemployed, (2) the payor is attempting to evade a support obligation, or (3) the payor has unreasonably failed to take advantage of an employment opportunity.

In re:  Marriage of Blume, 2016 IL App (3d) 140276 at 30.

 

2.  The needs of each party:  750 ILCS 5/504 (a)(2).  Illinois law require courts to consider the needs of each party.  That means not just the spouse to receive maintenance, but also the needs of the spouse who might have to pay it.  Where a spouse cannot meet daily needs, maintenance may be appropriate even if the spouse is employed.

 

Employment Is Not Determinative:  The law requires the court to consider the income and the occupation of each party, but those factors are not determinative.  The court must also consider each party's needs.  In short, if a spouse's income is insufficient to meet his or her needs, a maintenance award is in order.

 

Frugality Not Rewarded With Impoverishment:  In In re: Marriage of Swanson, 275 Ill.App.3d 519, 646 N.E.2d 215, 212 Ill.Dec. 62 (4th Dist., 1995), the couple lived a very frugal existence during the marriage, such minimum needs will not set the benchmark by which the court will measure its maintenance award – a more liberal award of maintenance may be justified.  See, alsoIn re: Marriage of Fields, 288 IllApp.3d 1053, 681 N.E. 2d 166, 224 Ill.dec 184 (4th Dist., 1997).  

 

3.  The realistic present and future earning capacity of each party: 750 ILCS 5/504 (a)(3).  This factor helps even things out in couples where one or both spouses receive property that produces income, malinger to reduce income, or face imminent retirement.

 

Imminent Retirement:  Care must be taken to ascertain the future income earning capacity of any retirement benefits allocated to the spouse receiving maintenance. Parties and lawyers must not ignore that, upon retirement, both spouses will live off retirement assets – equitably divided in the divorce – and may have no other income.  In In re:  Marriage of Claydon, 306 Ill.App.3d 895, 715 N.E.2d 1201 (4th Dist., 1999), the wife was awarded maintenance for 6 years as that would coincide with the husband's retirement and the wife's ability to draw interest income from the 401(k) assets awarded to her without invading principal.

 

4.  The "Homemaker Contribution:"  750 ILCS 5/504(a)(4).  Illinois law requires courts to consider the extent to which one spouse sacrificed his or her career to stay at home and maintain the household and rear the children while the other spouse builds a secure financial future.  At the end of the marriage, the employed spouse starts a new chapter in life with the income, assets, and perks afforded by the career.  The law protects the homemaker from being deprived too few resources with which to build a new life. Illinois law permits judges to look at the effort and sacrifice of the homemaker as a contribution to the marriage on a par with the effort of the breadwinner.

 

The "homemaker contribution" can be significant.  Several Illinois cases spell out how a court should look upon the years of sacrifice made by homemaker spouses.  See, e.g. In re: Marriage of Turrell, 335 Ill.App.3d 297, 781 N.E.2d 430 (2d Dist., 2002) where the appellate court said a $400 per month award of maintenance was not enough where the wife earned only $14,000 compared to her husband’s $100,000 annual salary. She was the primary caregiver to the couple’s four children, had only a high school education and a teacher’s aide certificate.

 

5.  Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought:  This factor was added to the list in January, 2016.  No case law exists interpreting this factor.  It is not unusual in maintenance cases for a potential maintenance payor to suffer financial and career setbacks.  Some of these are legitimate, some are not.  The court must consider these setbacks and the extent to which they may impair the potential payor's "realistic present or future earning capacity" spelled out in factor 3, above.


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 or any parental responsibility arrangements and its effect on the party seeking employment:  That's a mouthful, but the bottom line is a lot of parents give up on holding down a career.  After a divorce they need time to build up some credentials and burnish the old resume.  That's a tall order, standing alone.  It becomes even more difficult if you've got three kids to watch 25 out of 30 days in a month.  The court is to take all of this into consideration.

 

Time to Acquire Education, Training, and Employment:  This is self-explanatory.  We often see cases where a young person abandons college to marry and is now divorcing.  That divorcee will need some time to go back to school and finish up that degree and get out into the workforce.

 

Support Through Appropriate Employment:  A former spouse who once held a license but allowed it to lapse during a marriage should be able to go back and jump through whatever hoops are necessary to renew that license.  Imagine a nurse or teacher who gave up the professions for the marriage:  the children, the parties, and society would be better served by the renewal of that license and the return to the workforce of that teacher or nurse.  That is "appropriate employment."  No benefit come from terminating maintenance when that person secures a part-time job waiting tables.

 

Parental Responsibility Arrangements:  This factor is not as significant as one might think. It usually only applies 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 / daycare. 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 to take advantage of certain tax loopholes that benefit both parties.  See 26 U.S.C.A. §215 and 26 U.S.C.A. § 71(c)(2). 

 

7.  The standard of living established during the marriage:  They don't call it "maintenance," for nuthin'.  The payments are to help a needy spouse "maintain" a lifestyle.    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.  In re: Marriage of Eisenberg, 348 Ill. App.3d 1082, 868 N.E.2d 1097 (1st Dist., 2004)

 

8.  The duration of the marriage: This factor allows the court to weed out marriages of less-than-one-year.  There is no rule in Illinois that marriages of a certain duration automatically produce maintenance awards.  Still, very short-term marriages often see maintenance hopes dashed early on by the court.  A formula sometimes ties the duration of the maintenance award to 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:  This factor usually carries the most weight.  Usually, where maintenance is awarded, the receiving spouse cannot hold a job in any meaningful way due either to age or health complications. Where one spouse is considerably older than the other, the older spouse should be expected to receive maintenance – especially if he or she is too old to maintain a career and the younger spouse is still employed.  See In re: Marriage of Toth, 224 Ill.App.3d 43, 166 Ill.Dec.478, 586 N.E.2d 436 (1st Dist., 1991).  Age, however, is not always the heaviest factor. In one noted case, a 32-year-old wife was awarded permanent maintenance.  In re: Marriage of Mayhall, 311 IllApp.3d 765, 244 Ill.Dec. 227, 725 N.E.2d 22 (4th Dist., 2000)

 

10.  All sources of public and private income including, without limitation, disability and retirement income:

 

11.  The tax consequences of the property division upon the respective economic circumstances of the parties:

 

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: The court must consider any valid agreement (a prenuptial or post-nuptial agreement) and, usually, courts will enforce such agreements.  Pre- and post-nuptial agreements are valid and enforceable when the requirements of 750 ILCS 10/7 are met. Most divorce cases settle and a good divorce lawyer will include a maintenance clause in a prenuptial agreement when advisable. If you are considering prenuptial agreement, be sure to work with a lawyer 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.

 
14.  Any other factor that the court expressly finds to be just and equitable: 

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