Beware: Big Changes To The Illinois Spousal Maintenance Law In 2019



Big changes are coming to the Illinois spousal maintenance law (spousal support) specifically Section 504 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). This section deals with maintenance, which was formally referred to as “spousal support” or “alimony.” The changes are set to take effect on January 1, 2019. This is big news for anyone currently involved in divorce proceedings and parties who are contemplating filing for dissolution in the near future. If maintenance is a factor in your divorce you will want to speak to an attorney regarding the below-mentioned changes, as there will be a difference between Judgments for Dissolution of Marriage entered before and after January 1, 2019.

First, is Spousal Maintenance Appropriate?

Before discussing the details of maintenance (duration and amount) the court must still make a finding that maintenance is appropriate given the specific facts of the case. This is nothing new. There is a threshold question that must be answered prior to figuring out any details of a maintenance award- is an award for maintenance appropriate? If the answer is no, then the court must bar the party seeking maintenance from an award of maintenance. This is a yes or no. You are either entitled to maintenance or you are not.

The new statute even states that if an award for maintenance is not appropriate, the court must bar the request, regardless of the length of the marriage. Length of marriage is a big factor in any divorce but the new change to this statute reiterates that this is only one of many relevant factors that must be considered when deciding if an award is appropriate in the first place.

Spousal Maintenance Duration and Amount

If the court determines that an award for maintenance is appropriate after considering all relevant factors, then you move forward to figure out duration and amount. To do so you must determine if guideline maintenance duration and amounts are appropriate.

Guideline Maintenance vs. Non-Guideline Maintenance

Guideline maintenance is awarded unless the court makes a finding that doing so would be inappropriate. Generally speaking, guideline maintenance is awarded if the parties’ combined gross annual income is less than $500,000.00 and if the payor of the maintenance is not obligated to pay maintenance or child support in any other court case from a past relationship.

As of January 1, 2019, maintenance will be calculated by taking 33 1/3 % of the payor’s NET annual income minus 25% of the payee’s NET annual income. This is a major change due to recent changes in the Internal Revenue Service (IRS) Code. Previously, guideline maintenance was calculated by taking 30% of the payor’s GROSS annual income minus 20% of the payee’s GROSS annual income.

The court will order maintenance for a duration that corresponds with the percentages that can be found in Section 504 of the IMDMA. Length of marriage is from date of marriage to date that a petition for dissolution of marriage is filed.  Here's how it breaks down based on duration:

Marriages - Duration Percentages for Spousal Maintenance

  • Less than 5 years (.20) or 20%
  • 5 years or more but less than 6 years (0.24) or 24%
  • 6 years or more but less than 7 years (0.28) or 28%
  • 7years or more but less than 8 years (0.32) or 32%
  • 8 years or more but less than 9 years (0.36) or 36%
  • 9 years or more but less than 10 years (0.40) or 40%
  • 10years or more but less than 11 years (0.44) or 44%
  • 11 years or more but less than 12 years (0.48) or 48%
  • 12 years or more but less than 13 years (0.52) or 52%
  • 13 years or more but less than 14 years (0.56) or 56%
  • 14 years or more but less than 15 years (0.60) or 60%
  • 15 years or more but less than 16 years (0.64) or 64%
  • 16 years or more but less than 17 years (0.68) or 68%
  • 17 years or more but less than 18 years (0.72) or 72%
  • 17 years or more but less than 18 years (0.76) or 76%
  • 17 years or more but less than 18 years (0.80) or 80%
  • 20 or more years: The court, in its discretion, shall order maintenance for a period equal to the length of the marriage (100%) or for an indefinite term.
If the court deviates from the guidelines the court must state why. The court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.

If fixed-term maintenance is granted then the maintenance terminates at the end of the period during which maintenance is to be paid. Maintenance is then barred after the said period ends.

Indefinite maintenance does not have an end date and it continues until modification or later termination.

If reviewable maintenance is granted, the court must state the period of the specific term of maintenance and state that it is reviewable.

Upon review, the court will determine if the maintenance should continue for further review, extend for a fixed non-modifiable term, extend indefinitely, or permanently terminate. This maintenance could also be modified or terminated pursuant to Section 510 depending on the facts of the case.

Maintenance Safeguards

The updated statue still makes sure that the payee is not receiving more than 40% of the parties’ combined net annual income, after adding the maintenance award to their individual annual income.
Additional language has been added to the statute to make sure that, in the event, that a payor’s guideline- based maintenance and child support obligation exceed 50% of their net income, the court may then determine non-guideline maintenance and/or non-guideline child support.


Modifications to Maintenance Orders Entered Prior to January 1, 2019

If you have an order for maintenance that was entered before January 1, 2019, and you file a petition to modify after the new law takes effect, then you should be able to continue including the maintenance payments in the payee’s gross income from federal income tax purposes. But, of course, this is dependent on the language in your marital settlement agreement or judgment for dissolution of marriage. If you no longer want the payments included in the payee’s gross income for federal tax purposes then you must expressly state so in the spousal maintenance modification order.


Biggest Takeaway from the Illinois 2019 Maintenance Law

The calculation method for maintenance beginning January 1, 2019, has been changed due to recent changes in the IRS code. The maintenance payor will not be able to deduct the maintenance payments from their gross income for federal income tax purposes if their Judgment for Dissolution of Marriage (including an award for maintenance) is entered on or after this important date. Previously, the party receiving maintenance (payee) would include the maintenance payment in their gross income for federal income tax purposes, thereby reducing the payor gross income for tax purposes.

If you have questions or concerns about spousal maintenance or another divorce-related issue contact Nichol Broshous or email Anderson & Boback to schedule your confidential consultation with our Chicago divorce attorneys to learn more about spousal maintenance law.


 THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT:  https://illinoislawforyou.com/spousal-support/new-illinois-spousal-maintenance-law-2019/

Comments

Post a Comment

Popular posts from this blog

When Divorced Parents Disagree About the COVID-19 Vaccine 

Image
  There is a lot of disagreement about vaccinations for children and the argument between parents with differing views on this subject is not a new one.  Illinois family law attorneys representing parents in this type of disagreement have worked throughout the years to avoid the problem in its entirety by addressing the issue of vaccination in the parenting agreement, now called an Allocation Judgment.  A prior agreement on how to handle vaccinations will give clarity as parents deal with the COVID-19 vaccine.   COVID-19 Vaccine Questions from Divorced Parents There are a number of questions and co-parenting issues surrounding the COVID-19 vaccine. Here are five of the most frequently asked questions we are seeing in our Chicago family law practice: 1. What If the Other Parent Will Not Get the COVID-19 Vaccine? We just saw a judge in Cook County strip a mother of her parenting time because she had not received the COVID-19 vaccine.  The parents were before the court on a child support
Read more

Contempt For Not Following A Parenting Plan

Image
  Is Your Ex Not Allowing Parenting Time with Your Child? If your ex is not allowing parenting time your child, can you hold them in contempt ? The short answer is yes.  Everything in the field of family law often draws a response from the lawyer which sounds like “ it depends. ”  The reason for the “it depends” relates to the parenting order itself and whether clarity exists.  One cannot be held in contempt if there is not a clear order lacking ambiguity. There was a time in court that we would enter orders that would allow the parents to set the schedule themselves.  Something like “Mary and Jack shall facilitate parenting time in the best needs of the child.”  Well, what exactly did that mean?  And if Mary thinks it is in the best interests of the child to see Jack once a week (or less) and Jack thinks he should see his daughter every day, then clearly, we have a problem.  Every one of these cases came back into court to have the judge decide what was in the child’s best interest re
Read more

Illinois Law Update – Can a Guardian Ad Litem Speak to a Therapist in My Case?

Image
The Illinois Marriage and Dissolution of Marriage Act in recent years gave the courts in Illinois the authority to order therapy for a minor child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties if it finds that the parents or all parties agree, that the child’s physical health is endangered or that the child’s emotional development is impaired, or that an abuse of allocated parenting time has occurred, or, one or both of the parties violated the judgment with regard to conduct affecting or in the presence of the minor child.  {See 750 ILCS 5/607.6 regarding same}.  However, the same statute previously explicitly indicated that all therapy would be confidential. As of August 13, 2021, Illinois enacted Public Act 102-349, and the statute is now modified.  It no longer has a provision stating that therapy would be strictly confidential.  This kept all information obtained by a Guardian Ad Litem from a therapist out o
Read more