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Maintenance (Alimony)

The Gitlin Law Firm, P.C., Woodstock, Illinois    © 2013
www.gitlinlawfirm.com



Q:What is maintenance?

A:Maintenance was previously called alimony. It is a spouse's right to support (periodic payments). Maintenance must be distinguished from child support which is support paid due to a child support obligation.

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Q:What are the factors that the court may use in determining maintenance?

A:The court uses a number of factors in determining maintenance. Key factors are:

    • The length of the marriage;
    • The disparity in the earnings of the parties;
    • Whether there are children of the marriage and whether one spouse has given up career opportunities due to the marriage;
    • The age and health of the parties;
    • Each party's ability to acquire income and assets in the future; and
    • The standard of living established during the marriage.

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Q:Will maintenance be awarded in an amount sufficient to allow both parties to live at the standard of living during the marriage?

A:Often the answer is no. While the standard of living is one of the factors the court uses to determining maintenance, generally the case law acknowledges that, post-divorce, neither party can afford to live at the same standard of living. It is often more expensive for a couple to live separately than together. It is true to state that the longer the marriage, the more the court will look to the standard of living that was established during the marriage in awarding maintenance.

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Q:Is there a 20 year rule regarding maintenance?

A:No. There is no 20 year rule regarding maintenance. On the other hand, I have developed two spreadsheets which analyze maintenance and property awards in cases where the marriage was 20 years or more in length and marriages of under 20 years in length. I was able to find that often there appear to be trends in maintenance awards based upon the length of the marriage. The trends I was able to generally identify were as follows:

    • Marriages of less than 10 years in length;
    • Marriages of between 10 to 15 years;
    • Marriages of 15 to 20 years in length; and
    • Marriages of 20 years or longer in length;
    • Marriages of 30 years or more.
  • Keep in Mind that there is nothing "automatic" about any of these dates and in essence I merely chose these dates as demarcation points.  Overall, I have not found that judges tend to use bright line rules based upon the years of the marriage but the years of the marriage overall is a significant factor in maintenance awards where there is a disparity in the earning capacity of the parties (and considering the other statutory factors in a case by case basis). 

To see a outline of a presentation I have given at several seminars on trends in maintenance cases, click here.  Note that my updated seminar including an updated version of this is available through IICLE's website regarding my 2011 and 2013 Master Teacher seminar.

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Q:I have a significant health problem. Should this health problem be considered in the court's award of maintenance?

A:Yes. One of the factors the court must apply in determining maintenance is the health of the parties. For example, I represented a woman, Mrs. Brackett, for the purpose of an appeal. The Bracketts' marriage was approximately 20 years in length and the court did not provide for permanent maintenance. The parties were in their mid-40's. Mrs. Brackett had multiple sclerosis and at the time of trial was wheel-chair bound. The appellate court reversed the trial court's award of maintenance for a set period of time. The appellate court ruled that the trial court should have awarded permanent maintenance.  To review the appellate court decision in Brackett, click here.

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Q:I have heard about permanent maintenance. Is there a trend toward permanent maintenance?

A:Yes, there is a growing trend toward permanent maintenance in appropriate cases. For example, there is one relatively recent decision in which the appellate court affirmed an award of permanent maintenance in a marriage 13 years in length. There was another case where health was not at issue and the marriage was 19 years in length. In each of these cases because of the significant disparity in the incomes of the parties, the court awarded permanent maintenance.

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Q:I have heard that in my case the court would likely set maintenance for a set period of time and thereafter maintenance would be “subject to review.” What does this mean?

A:There are many Illinois appellate court cases where the higher court ruled that the trial court erred in failing to set a review date for maintenance. In a number of these cases the appellate court found that the trial court erred in speculating (guessing) that the spouse receiving maintenance would be “rehabilitated” at the end of a certain period of time (for example, at the end of a three year time period). It is often safer for the trial court to provide for a review of maintenance in a certain number of years. While this may sound like a good thing, the parties who agree to such a review should keep in mind that there will generally be substantial attorney's fees incurred at this review hearing. I refer to such hearings as “review battles.” Often the spouse who pays maintenance will negotiate to pay maintenance for a somewhat longer period of time or in a higher amount in order to avoid the review battle.

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Q:What are the tax consequences of a maintenance (alimony) award?

A:Maintenance is generally taxable to the recipient and the party who pays maintenance is able to deduct the maintenance payments that are made. There are circumstances where the parties may agree that the person who receives maintenance will not have to pay taxes on maintenance.  But this is unusual. Generally, the maintenance recipient must pay taxes on the maintenance award.

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Q:I have heard about unallocated maintenance awards. What is unallocated maintenance? Is there a tax savings due to the payment of unallocated maintenance awards? How should such an award be structured?

A:In many cases, a party (usually the husband) is ordered to pay both child support and maintenance. The husband will often be in a higher tax bracket compared to the wife. In such cases, there may be a significant tax savings if the husband pays only maintenance to the wife. In such cases, the total award will be considered to be “unallocated maintenance” (that is not allocated between support and maintenance). For example, assume a case in which there are three children. According to the support guidelines, the husband would have paid 32% of his net income for child support. Assume the parties also agree that the husband should pay for four years, 10% of his net income for maintenance. It is possible to structure a settlement under which the husband would pay somewhat more than 42% of his net income for unallocated maintenance. The reason for payment of somewhat more than the 42% figure is that the husband would be able to deduct the entire award – rather than just the 10% maintenance portion. Such a result will often increase the available net income for the support recipient. Drafting enforceable unallocated maintenance awards requires a lawyer to have significant knowledge of the tax laws. Nevertheless, such awards can often result in a “win-win” situation for the parties because of the resulting tax savings.

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Q:Does maintenance terminate if a am living with someone?

A:Generally, maintenance in Illinois terminates if someone lives with another person on what is called a “resident, continuing, conjugal basis.” The terms resident and continuing appear clear enough. The term conjugal generally means “marriage like.” Illinois case law addresses the factors which come into play in determining whether a relationship is marriage like. These factors include whether there is an economic impact due to the relationship and the degree to which the relationship is like a marriage or more of a house sharing arrangement.

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Q:What if I live with another person before a divorce for a relatively short period of time? Surely this is not enough to disqualify me from receiving maintenance?

A:Wrong. Illinois case law generally holds that what is called “pre-judgment conjugal cohabitation” may disqualify a person from receiving maintenance.  The length of time may be a factor in determining what might be considered to be the continuing nature of the relationship. 

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Q:Does maintenance automatically terminate or would I need to go to court?

A:The safe course is to go to court and to have maintenance terminate if the spouse who is receiving maintenance is living with another person on a resident, continuing, conjugal basis. However, the person seeking to terminate maintenance would have to prove the resident, continuing conjugal cohabitation.

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Q:Are these cases where maintenance does not terminate due to living arrangements?

A:Yes. A marital settlement agreement can provide that maintenance will not terminate in the event of conjugal cohabitation. The critical issue in this regard is the manner in which a marital settlement agreement is drafted.

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The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case.  The Gitlin Law Firm's practice is generally limited to McHenry County, Lake County, Kane County and Boone County, Illinois. 

The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401

www.gitlinlawfirm.com

Gitlin Law Firm, P.C.

Updated:  April 23, 2013


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