Modifying Maintenance

by Wes Cowell; updated 16 NoOvember 2016 -- suggest a correction.

 

Maintenance, like child support, may be modified whenever there has been a "substantial change in circumstances."  Need advice?  Call, leave your info, or schedulescheduleschedule a consult.

 

Background:  A divorcing couple may agree that maintenance will terminate or be modified upon the happening of a certain event or on a certain date.  If they agree that maintenance will be paid but don't bother to define a terminating or modifying event or date, then the maintenance will go on until one of them requests a review based on a change in circumstances. If circumstances don't change substantially, then the maintenance payments continue . . . forever.

 

Intead of getting into the nitty-gritty of defining termination or modification dates and events, many couples simply agree to "reviewable maintenance:"  they set a date on which to review the maintenance award.  When a couple agrees to reviewable maintenance, there is no need to show a "substantial change in circumstances."  Blum v. Koster, 235 Ill. 2d 21, 335 Ill. Dec. 614 919 N.E.2d 333 (2009); you just have to wait for the clock to tick down to the review date.

 

If the couple can't agree a judge may  award maintenance that will terminate on a certain date; but only in cases where the divorce was filed prior to the 10th wedding anniversary. That's called "permanently terminating" maintenance.  For marriages that have lasted at least ten years, judges don't have that option and may award only reviewable maintenance.  When a judge awards reviewable mainteanance (as opposed to the couple agreeing to such an award), the judge may define the review trigger as either a specific future date or the occurrence of a defined event (like, "wife's obtaining her Master's Degree and full-time employment in her career or the passage of seven years, whichever first occurs").

 

Substantial Change In Circumstances:  Illinois law doesn't define who-must-do-what for a maintenance review or when the petition must be filed.  So what do you do when the review date rolls around?  Whose job is it to ask the court to review the situation?  Can a review be requested once the review date passes?  If no one asks for a review, do the payments continue, or stop on the reivew date?  Who bears the burden of proof?   None of this is spelled out in the law.

 

The reviewing judge must look first to the agreement or the underlying court order — that SHOULD spell out eveything . . . but what if it doesn't?  

 

Who Must Request the Review? If the underlying agreement is silent on the subject, 

 

Are Tardy Review Requests Barred?:

 

Does Maintenance Stop After the Review Date Unless/Until an Extension is Granted?

 

Who Bears the Burden of Proof?

 

 

Burden of Proof to Reduce or Terminate:  An award of permanent maintenance may be modified or terminated either by agreement or as provided in section 510(c) of the Act. See, In re Marriage of Culp, 341 Ill. App. 3d 390, 397 (2003) (burden of proving change in circumstances to justify termination or modification on paying party).

In re Marriage of Shen, 2015 IL App (1st) 130733

 

One conundrum comes up, however, under the 2015 amendment to the law.  That amendment gives the court the power to award maintenance with a "permanent termination" date in cases where the divorce was started prior to the 10th wedding anniversary.  This change overrules the Supreme Court's ruling in Blum.  So what if you have a permanently terminable award and the facts are beset by a substantial change in circumstances?  Will the court have the power to open up its own judgment and modify what had been a permanently terminable award.

 

Imagine this scenario:

 

H, a sucessful small business owner, and W divorce after an 8-year marriage.  W was a stay-at-home Mom who once was a teacher but gave up her career to raise two kids and fought a battle with stomache cancer. The cancer has been in remission, but she has bi-annual tests.  She needs to take some classes, renew her teaching certificate, and probably a year's worth of interviewing.  They can't agree on maintenance, so they go to a hearing.  The judge awards 4 years of maintenace -- enough time to take the classes, renew the certificate, look for a job, and one extra year just-in-case -- and makes the award "permantently terminable."

 

H's business does well and he sells a piece to an investor for a handsome $3MM profit.  W takes the classes and renews the certificate.  Her stomache cancer returns and the treatments prevent her from looking for work.  She's unemployed, unemployable, and cannot qualify for unemployment benefits.

 

Certainly W can go to court to ask that the amount of the maintenance payments be increased for the duration of the award; but when W goes back to court to ask the judge to modify the permanently terminable maintenance award by extending its duration to allow her to fight Round 2 of the cancer battle , can the judge do that, or are the judge's hands tied?  I THINK if the court specifically retains jurisdicition to modify its judgment, the judge COULD undo the "permanently terminable" language.  If that "reservation of jurisdiction to modify" language isn't in the judgment, however, the court loses jurisidcition to modify after 30 days and I THINK the judge's hands would be tied.  I don't know.  We'll have to wait for a case to find out.

 

 

The Factors:  If a modification is permitted, the law sets out specific factors that the court should consider in determining the new amount and duration of maintenance.

 

Sometimes parties will agree to review maintenance after a set number of months. Be sure to work closely with a knowledgeable attorney to avoid disaster. Consider the case of a couple who divorced, agreed that the husband would pay the wife $100 per week in maintenance and then review the award ten months later.

 

3 On review, the court awarded the wife $1,400 per month – that's right, from about $420 to $1,400. The husband thought it was too much, and the wife was troubled by the fact that she hadn't been receiving it all along. A good divorce lawyer writing a better agreement could have avoided the problem altogether.

 

The same factors used in establishing an initial maintenance award are used in modifying an existing maintenance award. In re: Marriage of Martin, 223 Ill.App.3d 855, 166 Ill.Dec. 136, 585 N.E.2d 1158 (4th Dist.), appeal denied, 145 Ill.2d 635, 173 Ill.Dec. 6, 596 N.E.2d 630 (1992).

 

The New Order:  When the court reviews reviewable maintenance, it may:

 

  • extend the maintenance award in the same amount, setting a date or event that will trigger the next review;

  • extend maintenance in a different amount, setting a date or event that will trigger the next review;

  • extend maintenance in the same or a different amount for an indefinite term (i.e., a permanent award) (see, e.g. In re:  Marriage of Culp, 341 Ill.App.3d 390, 275 Ill.Dec. 221, 792 N.E.2d 452 (4th Dist., 2003); or

  • terminate maintenance.

 

LEGISLATIVE ALERT:  As of 4 May 2016, Amendment 001 to House Bill HB 3898 had passed both the House and the Senate.  The amendment will put a few more tools in the court's maintenance toolbox.   Under the amended law, when reviewing maintenance, in addition to the remedies already available, the court will be able to 

  1. extend the maintenance award for a fixed non-modifiable term,

  2. permanently terminate maintenance in accordance with 750 ILCS 5/504(b-1)(1)(A).

That last bit doesn't make any sense, but that's the way the clean-up bill is written.  The “permanently terminate maintenance in accordance with subdivision (b-1)(1)(A)” looks like a goof.  Subdivision (b-1)(1)(A), however, spells out the “30%-of-payor’s-gross-minus-20%-of-recipient’s-gross” formula.  It doesn’t talk about “permanently terminating” maintenance.  The “permanently terminating” language (for marriages of less than ten years) is in 504(b-4.5).  Follow this space for more updates.

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