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“Reviewable” and “Non-Modifiable” Maintenance

by Wes Cowell; updated 30 May 2015 -- suggest a correction


Unless the parties agree to make maintenance "non-modifiable," maintenance is always modifiable whenever there's been a "substantial change in circumstances." Some maintenance awards set a date to review everything — whether or not there's been a change in circumstances. The review may terminate or modify maintenance payments or, set another review date.  Need advice?  Call, leave your info, or scheduleschedule a consult.


Agreements of Non-Modifiability:  Illinois law encourages divorcing couples to settle things in an agreement.  A divorcing couple may agree that maintenance will be non-modifiable, or that it terminate or be modified upon the happening of a certain event or on a certain date.  750 ILCS 5/502(f).  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.  Such requests may be made only upon the happening of a "substantial change in circumstances."   If circumstances don't change substantially, then the maintenance payments will go on until one of them dies.


Intead of getting into the nitty-gritty of defining termination or modification dates and events, many couples simply agree to "reviewable maintenance," and they set a date on which to review the situation.  When a couple agrees to reviewable maintenance, there is no need to show a "substantial change in circumstances;" the agreed-to review date is the trigger. "[T]he parties agreed to a general review of maintenance. Thus, Steven did not have the burden of proving a substantial change in circumstances."  Blum v. Koster, 235 Ill. 2d 21, 335 Ill. Dec. 614 919 N.E.2d 333 (2009).


Absent Agreement, Awards Must Be "Reviewable:"  The parties always have the option to agree to make the maintenance award terminate at a particular time.  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.

750 ILCS 5/504(b-4.5)


So, for marriages of less then ten years the judge 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 review date, but the recipient may always seek an extension.  For example, in In re:  Marriage of Shen, 2015 IL App (1st) 130733, the court awarded the wife maintenance in the amount of $1,300 per month, “until the first to occur of [Janet’s] death, remarriage, co-habitation with another person on a continuing resident conjugal basis or her sixty-sixth birthday, the age upon which she is eligible for full social security benefits.”


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).

. . . 

The judgment specifically states that Janet is to receive “permanent maintenance,” but the trial court included a termination event–her sixty-sixth birthday when “she is eligible for full social security benefits”–in addition to the statutory events. See 750 ILCS 5/510(c) (West 2012).

. . . 

[T]he trial court terminates maintenance without knowing anything about Janet’s or Feng’s financial circumstances at the time Janet reaches age 66, many years in the future. Terminating in this manner violates section 510(c), as a matter of law. Whether permanent maintenance is still required when Janet becomes social security eligible should be a matter to be decided at that time and not now. Trial judges cannot gaze into a crystal ball and foresee what the future holds - 15 - for the parties. This explains why permanent maintenance is always modifiable or terminable should there occur a substantial change in circumstances.


"Substantial Change in Circumstances":  Absent language in the Marital Settlement Agreement calling for a mandatory review -- or termination -- upon the happening of a specified event or the passage of time, courts may consider modifications only after the moving party has presented a prima facie case showing a “substantial change in circumstances.”  Illinois law (750 ILCS 5/510(a-5)) says:


(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:


  1. any change in the employment status of either party and whether the change has been made in good faith;

  2. the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

  3. any impairment of the present and future earning capacity of either party;

  4. the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

  5. the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

  6. the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

  7. the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

  8. the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

  9. any other factor that the court expressly finds to be just and equitable.


Failure to first show a substantial change in circumstances will block the court from considering any evidence about whether maintenance shoud be modified.  In In re: Marriage of Turrel, 335 Ill.App.3d 297, 781 N.E.2d 430 (2d Dist., 2002).  At the time of her divorce from her husband, Graham, Virginia Turrel suffered from Lyme Disease and was drawing Social Security Disability Income.  Upon a five-year review (the paritees agreed to it in the Marital Settlement Agreement), the court concluded that although she still suffered from Lyme disease, she was capable of being employed and had just not applied herself sufficiently to become financially independent. The court reduced her maintenance payments.  The appellate court reversed, noting that Graham failed to show any substantial change in circumstances that would permit the court to consider a modification. This case gets it wrong according to the Supremes in Blum v. Koster -- Graham Turrel didn't have to show a substantial change in circumstances because the parties had agreed to a review date.  I include the Turrel case here, though, because it clearly spells out the two-step dance: first one must show a “substantial change in circumstances,” and only after doing so may one then present the evidence that would allow the court to terminate or modify the maintenance award.  Here, Graham had the burden of showing a substantial change in circumstances and until he did so, Virginia didn't have to prove anything.


Modifying Maintenance Upon Voluntary Retirement:   Folks are living a lot longer these days  and many are working later into their senior years.  On the other hand, many employers seek to stay competitive by getting older, more expensive workers off the payroll by offering early retirement plans.  Illinois law doesn’t deal with how early retirement affects existing maintenance awards.  Courts in Florida (“In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire.  The age of 65 years has become the traditional and presumptive age of retirement for American workers.”  Rogers v. Rogers, 746 So. 2d 1176 (Fla. Dist. Ct. App. 2000) and California (“[W]e hold that no one may be compelled to work after the usual age of 65 in order to pay the same level of spousal support as when he was employed.” Reynolds v. Reynolds, 63 Cal.App.4th 1373, 1998 Cal.App. LEXIS 439) have directly dealt with the impact of retirement on maintenance.  They use the “65-and-out-rule” meaning that retirement at the age of 65 operates as a substantial change in circumstances, per se, warranting a moidification in maintenance.


Illinois courts, however, have been slow to articulate a rule by which divorced spouses can definitively plan for their retirements.  So, what happens when an obligor paying maintenance retires and experiences the resulting decrease in income?  The general rule in Illinois is that a reduction in the maintenance obligation is not warranted when the payor encounters a voluntary reduction in income.  Voluntary retirement, however, can sometimes be considered a special situation.  There are several cases that stand for the proposition that a spouse paying maintenance may deserve a reduction or termination of the obligation upon retirement.  Although the Illinois courts have not officially endorsed the “65-and-out-rule,” there is hope of reducing a maintenance obligation upon retirement.  Maintenance termination upon retirement is possible when the court considers a variety of factors including the payor’s age, health, motives, timing, ability to pay after retirement, and the recipient spouse’s financial position.  In re:  Marriage of Smith, 77 Ill.App.3d 858, 396 N.E.2d 859 (2d Dist., 1979).



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