Illinois’ Maintenance Formula

by Wes Cowell; updated 11 April 2017 -- suggest a correction

 

Fourteen factors determine whether maintenance should be awarded.  750 ILCS 5/504(b 1).  If so, a formula determines the amount and duration in most cases.   The court may deviate from the formula.  For marriages of less than 10 years, the award may be finite without the possibility of an extension.  In longer marriages, however, any maintenance award must be "reviewable" unless the parties agree to make it "permanently terminable."  Need advice?  Callleave your info, or schedule a consult.

 

Prior to 2015, maintenance awards in Illinois were determined on a case-by-case basis.  Identical cases in front of the same judge could produce very different results.  The process was cumbersome, time consuming, court-clogging, and unfair.

 

Statutory formulas -- like the one we've used for child suport since 1984 -- "promote uniformity which, in turn, encourages settlement. . . .  Guidelines provide benchmarks for attorneys to use as a tool to encourage reasonable settlement, and a uniform comparative basis for the judiciary 'to permit a smoothing out of the curve of dispatare results.'  Turk v. Turk, 2014 IL 116730 (2014), citing Linda Henry Elrod, The Federalization of Child Support Guidelines, 6 J. Am. Acad. Matrim. Law 103, 111 (1990).

 

Application:  Illinois maintenance formula law (750 ILCS 5/504(b-1)) applies to couples who earn a combined, annual gross income less than $250,000 and neither party has a prior family that is still supported by court order (i.e., neither spouse mst pay a prior alimony or child support order or the like).

 

If you're not in that group, the law says you're supposed to go back to the case-by-case method using the fourteen factors spelled out in the law.  One 2016 appellate ruling on a case concluded in 2015, however, says that even for cases that fall outside the formula's reach, the court still should "look to the guidelines for guidance."  What the? IRMO Johnson, 2016 IL App (5th) 140479, saw the dissolution of a 28 year marriage in which Bernard Johnson's gross income was $317,006 and $216,078 in the years leading up to the filing.  The trial was held in late October, 2013 -- more than a year before Illinois' maintenance formula law took effect.  The trial court awarded Julie Johnson (unemployed) $2,750 monthly maintenance for two-and-a-half-years.  On Julie's appeal, the Fifth District Appellate Court said:

 

Our conclusions find support in the legislature's recent amendment of section 504 of the Act to provide a formula for determining the amount and duration of maintenance. See Pub. Act 98-961 (eff. Jan. 1, 2015) (amending 750 ILCS 5/504 (West 2012)). Although that provision is not applicable to this appeal, it does provide some guidance.

 

¶ 109 Section 504(b-1)(1)(B) 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." 750 ILCS 5/504(b-1)(1)(B) (West 2014). Therefore, if that provision were applicable, under the facts of this case, and pursuant to the guidelines, the court would be required to order either permanent maintenance or maintenance for a period of almost 29 years, which is in stark contrast to the 2½ years of maintenance awarded in this case.

 

¶ 110 In addition, applying the statutory guidelines to the parties' 2012 adjusted gross income ($216,078 for Bernard and $0 for Julie) would result in a monthly maintenance award of $5,401.95. See 750 ILCS 5/504(b-1)(1)(A) (West 2014) ("The amount of maintenance *** shall be calculated by taking 30% of the payor's gross income minus 20% of the payee's gross income."). If we assume that, pursuant to the trial court's property distribution, Julie would receive $6,000 per year from the oil lease and $7,118 per year from the rental properties, the monthly maintenance award would be reduced by $218.13 to $5,183.32, which is in stark contrast to the monthly maintenance award of $2,750 in this case.

IRMO Johnson, 2016 IL App (5th) 140479.

 

Johnson's dicta says:  even if the guidelines don't apply . . . they still should be looked to for guidance.  Go figure.

 

The Formula:   The formula is simple:

 

Amount of maintenance:  The dollar value of a maintenance award is calculated by subtracting 20% of the recipient's gross income from 30% of the payor's gross income.  The maintenance law (at 750 ILCS 5/504(b-3) says to look to the child support law's definition of gross income."  750 ILCS 5/505.  The old (pre-7/1/17) child support law didn't define "gross income," however; it defined only "net income."  The new child support law DOES define "gross income."  There are lots of child support cases that define gross income.  Go read the "All Income From All  Sources" page under Child Support.)

 

Maintenance Cap:  The calculated maintenance payment, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parites.

 

  1. Figure out who should be paying maintenance to whom (the payor is the "obligor" and the recipient is the "obligee").

  2. Subtract 20% of the obligee's gross income from 30% of the obligor's gross income (not sure what "gross income." means?  The maintenance law says to look to the child support law's definition (750 ILCS 5/505) of "gross income." The child support law doesn't define "gross income; it defines "net income."  There are, however, lots of cases that define gross income.  Go read the "All Income From All  Sources" section in my article on Establishing Child Support.)

  3. Apply the 40% cap:  the sum of the maintenance award and the recipient's gross income may not exceed 40% of the combined gross income of the parties -- just back off the maintenance award to get within the 40% cap.

  4. Divide by 12 -- this is the amount of maintenance to be paid each month.

  5. Calculate the duration of the payments by multiplying the length of the marriage by whichever of the following factors applies:

     

    0-5 years. . .  (.20)

    5-10 years . . . (.40) (note:  if your divorce case is filed before your tenth wedding anniversary, the judge has the power to make the maintenance award either reviewable or "permanently terminable;" that is, to absolutely end on a specified date with no possibility of an extension -- see below)

    10-15 years . . . (.60)  (note:  if your divorce was filed after your tenth wedding anniversary, any award by the judge must be "reviewable" -- the court doesn't have the legal authority to make the maintenance award permanently terminate -- see below).  

    15-20 years . . . (.80)

    20 + years . . .  the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

     

  6. If you don't like the result, go back and look at the factors and see if you can argue for a deviation (more money, less money, longer or shorter duration -- whatever -- using the factors you may be able to justify a deviation.

 

Deviation From Maintenance Formula:  The formula is not writen in stone.  The law allows the court flexibility to accommodate difficult fact patterns.  The law says the court MUST use the formula "unless the court makes a finding that the application of the guidelines would be inappropriate."  750 ILCS 5/504(b-1)(1). The law went into effect 1 January 2015 so examples in the appellate record are scarce.  Earlier case, however, can offer guideance.   For example, where the wife suffered from multiple-sclerosis and wasn’t financially self-sufficient, maintenance was extended for four years and the issue was thereafter reserved.  In re: Marriage of Stam, 260 Ill.App.3d 754, 198 Ill.Dec. 467, 632 N.E.2d 1078 (3d Dist., 1994).  

 

Reviewable Maintenance, "Permanent Termination," and the 10-Year Rule:   The parties always have the option to agree to make the maintenance award terminate or be reviewable at a particular time.  The parties can agree to anything they want so long as it's not "unconscionable."  If the parties don't agree, however, the judge's options are somewhat limited.  Illinois law (750 ILCS 5/504(b-4.5) says:

 

(b-4.5) Fixed-term maintenance in marriages of less than 10 years.  If a court grants maintenance for a fixed period under subsection (a) of this Section at the conclusion of a case commenced before the tenth anniversary of the marriage, the court may also designate the termination of the period during which this maintenance is to be paid as a "permanent termination."  The effect of this designation is that maintenance is barred after the ending date of the period during which maintenance is to be paid.

 

So, for marriages of less then ten years the judge, essentially, may make a maintenance award "non-reviewable," or non-extendable.  That's not an option in longer marriages.  In longer marriages, the judge may award maintenance for a specific period and set a termination (or review) date, but the recipient may always seek an extension.  In ten-year-or-less marriages, the court has the option of barring the extension.

 

If You Don't Fall Into That Category:  If you and your spouse make more than $250,000 a year OR if either of you have court-ordered obligations (paying or receiving) for a prior family, you don't use the formula -- you just go straight to the factors just like in the old days and you work with a lawyer to figure out what the maintenance award should be in your case . . . just like in the old days.

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