Reviewing Reviewable Maintenance

by Wes Cowell; updated 13 November 2016 -- suggest a correction.

 

Maintenance reviews are different from maintenance mofications in procedure, but not in substance. When a court awards maintenance, the award is to be reivewed near its end date or the happening of a specified event -- you don't need a "substantial change in circumstances."   If a divorcing couple can't agree to a review date, the court must set a review date.  For marriages of less then ten years, however, court may make maintenance "permanently terminable;" that is, with NO review date, it just stops . . . period.  A review may terminate maintenance, extend it indefinitely, or set another review date.  Here's what you need to know.  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 modification 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 out the clock 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").

 

Non-Reviewable Maintenance:

 

Maintenance in Gross:

 

Logistics:  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 AFTER 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?

 

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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