If you expect to pay maintenance as part of your divorce, you might be wondering if a court would ever terminate or modify the obligation. After all, life can change, and so can one’s income stream. Also known as alimony or spousal support, maintenance awards are intended to create more financial equity between former spouses. For example, in the case of the spouse who sacrifices his or her career to care for young children at home – often characterized as a “displaced homemaker” – that person is often awarded maintenance due to insufficient income in comparison to the other spouse, whose career has not been similarly impaired. The spouse who earns money to support the family is usually referred to as the “financial breadwinner.”
Terminating Maintenance in Illinois
Under the Illinois Marriage and Dissolution of Marriage Act, which is the statute in Illinois governing divorce, maintenance terminates based on the recipient’s death, remarriage, or cohabitation. In addition, it is possible to modify the amount and potentially the duration of a maintenance award based on the occurrence of substantial changes in circumstances following the divorce. The lawyers at Davis Friedman can advise you on whether you have a case to terminate or modify a maintenance obligation. They can also help you address issues surrounding maintenance before your marriage via a prenuptial agreement, or before a divorce either in court or by structuring a favorable marital settlement agreement on your behalf.
If maintenance is an issue in your divorce, judges first determine whether one spouse is a candidate entitled to receive maintenance. In determining whether maintenance for one spouse is appropriate, the courts address the lifestyle of the spouses during the marriage, the needs of the parties, and each party’s ability to pay maintenance. Generally, the amount and duration of maintenance are determined under statutory guidelines set forth in Section 504 of the Act. The guidelines provide that the amount of maintenance is calculated by taking one-third of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is over 40% of the combined net income of the parties. The guidelines are intended to apply only where the combined gross income of the two spouses is less than $500,000 per year.
The duration of maintenance is determined under the Act based on the length of the marriage. The longer the marriage, the longer the duration. With a marriage of 20 years or more, the duration can equal the length of the marriage or be indefinite.
Maintenance is often addressed in prenuptial agreements, as well. Some prenups include a clause guaranteeing either spouse a minimum amount of alimony if the marriage ends in divorce. Conversely, some prenups provide that neither spouse will ever become entitled to maintenance should the marriage end in divorce.
Cohabitation of an Ex
Two of the most common reasons maintenance gets terminated are that the recipient of payments either remarries or is cohabitating with someone new. Typically, a court will examine multiple factors to determine whether or not a former spouse has cohabited. If you think you have a case for termination of maintenance based on cohabitation, you might have to demonstrate to the court that your ex is living with someone on a “resident, continuing, conjugal basis.” This is a legal term defined under case law, and the analysis requires careful factual and legal analysis.
If you suspect your ex is cohabiting, prepare to show the court that it is an intimate relationship, similar to a marriage (sometimes the courts describe cohabitation as a marriage without the license), with signs of commingled funds. The following types of details can help you make your case:
- When the relationship began;
- How much time the couple spends together;
- What types of activities they engage in;
- Any overlapping of their personal or financial affairs;
- Major shared expenses; and
- Vacations or holidays they have spent together.
Economic Factors
The couple’s intermingled finances can play an important role in the court’s decision to terminate maintenance on the basis of cohabitation. For monetary support to end, the circumstances typically will indicate a significant and lasting change, e.g., the display of an intention for the relationship to remain permanent, such as an engagement to be married. A court can also consider factors such as the purchase of a car, joint household expenses, contributions to one another’s loans or accounts, and joint accounts – things that indicate the couple is behaving like a married couple financially.
In a request for a modification of maintenance based on the occurrence of substantial changes in circumstances, your case may include multiple financial or other factors. A court might consider whether shared children no longer need a full-time parent at home, or whether your ex has made reasonable and good faith efforts to become self-supporting. If you’re planning to retire, your ex comes into an inheritance, or some other life event alters the financial balance between parties, an attorney at Davis Friedman can help you understand what impact such occurrences could have on your maintenance obligation and whether your obligation can be modified or terminated.
Divorce Settlement Agreement
A divorce settlement agreement can help you and your soon-to-be ex work toward an amicable resolution of all issues surrounding your divorce, including maintenance. It can also define what kind of changes in income or new relationship would trigger spousal maintenance to be modified or terminated. Most couples include provisions in their divorce agreement that the first to occur of the recipient’s death, remarriage, or cohabitation shall trigger a termination of maintenance.
Keeping an eye on their ex’s activities is the last thing most couples want to do after a divorce. But doing so and learning that your ex may be cohabiting can save you a substantial amount of money if you are the one obligated to pay maintenance to your ex. A family law attorney at Davis Friedman can ensure that you use the most appropriate language regarding maintenance guidelines when drafting your marital settlement. Taking the time to procure good legal advice prior to your divorce may very well save you the headache of gathering evidence on Instagram to fight for your rights in court later on.
Do you need assistance analyzing how courts determine when maintenance awards can end or be modified, or how to address maintenance in your prenuptial or marital settlement agreement? The experienced lawyers at Davis Friedman will consider your financial disclosures, develop appropriate arguments for your case, and help you achieve the best result possible. Contact us at 312-782-2220 for a consultation.
