Illinois Law on Property Division, Maintenance, and Child Support in Divorce Cases after 2017

This will be a brief analysis of the governing statutes in Illinois, as they pertain to property disposition, maintenance, and child support for divorce cases, are 750 ILCS 5/503, 5/504, and 5/505, respectively. Furthermore, there has been an exhaustive review of case law since the enactment of the amendment of the Illinois Marriage and Dissolution of Marriage Act, which went into effect on January 1, 2016.[1]


           Turning first to 750 ILCS 5/503, which addresses the disposition of property, several cases after 2017 have contributed to the case law on the statute. One key case is In re Marriage of Amyette, where the Illinois Appellate Court highlighted the delineation of marital and nonmarital property.[2] The parties had a prenuptial agreement listing that the husband’s house was separate nonmartial property.[3] The wife contended that there was a separate postnuptial oral agreement wherein, in exchange for $40,000 to pay off one of the husband’s loans, the husband agreed to add the wife’s name to the deed of his house.[4] The court ultimately ruled that property excluded by a valid agreement between the parties, which includes pre-and postnuptial agreements, is governed by 750 ILCS 5/503(a)(4).[5] Therefore because the prenuptial agreement explicitly stated that the husband’s house was nonmarital property this designation applied unless there was some invalidity which applied.[6] The circuit court had invalidated the designation based on general equitable principles, but the Appellate Court found an issue with the invalidation due to the postnuptial agreement being oral only and that it occurred well five months after the parties were married.[7] Furthermore, Illinois law prohibits oral postnuptial agreements from superseding the prenuptial agreement under section 6 of the Illinois Uniform Premarital Agreement Act.[8] Which outlines in part that “after marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. 750 ILCS 10/6.”[9] Ultimately, the Appellate Court held that the circuit court erred when it designated the husband’s house as owned by the parties as tenants in common.[10] The court thereby showed that even if oral agreements are made postnuptially, they can only be enforced if in writing and “general equitable principles” do not apply when a premarital agreement explicitly outlines that a property is nonmarital.


            Turning next to 750 ILCS 5/504, which addresses the maintenance award in divorce proceedings. The statute looks at a broad definition of income for the purposes of calculating maintenance. The statute also discusses the ability to modify or terminate maintenance, but such an agreement must be made in writing and approved by a court. Furthermore, as the Illinois Supreme Court held in Blum v. Koster, the trial court cannot make an award of maintenance nonmodifiable absent the parties’ express agreement.[11] Aside from income, the Illinois Marriage and Dissolution of Marriage Act requires courts to consider various factors when determining an award of maintenance such as acquisition, preservation, or increase or decrease in value of the marital or non-marital property, the value of the property assigned to each spouse, the duration of the marriage, the relevant economic circumstances of each spouse, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, among several others as outlined in the Act and in In re Marriage of Heroy.[12] In summary, 750 ILCS 5/504 provides the necessary guidelines for providing, modifying, and terminating maintenance payments in the event of a divorce.


            Furthermore, the amount of maintenance is calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.[13] As illustrated in In re Marriage of Brill, the cap on the amount of maintenance is 40% of the combined net income of the parties.[14] Further, the statute provides guidelines for how the duration of the maintenance is to be calculated when the combined gross annual income is less than $500,000. The specific breakdown can be found in 750 ILCS 5/504 (b-1)(1)(B), and the guidelines provided are for marriages up to 20 years, and for marriages over 20 years, the court has more discretion.[15] As shown in In re Marriage of Churchill, the court must consider factors outlined in the statute for maintenance awards that don’t fall under the statutory guidelines.[16] Including factors like the parties’ income and property, any impairment to their earning potential, age, health, and the length of the marriage, to name a few of the factors.[17]


            Turning lastly, to 750 ILCS 5/505 which addresses the calculation of child support obligations. The statute looks at what constitutes income for the purpose of calculating child support, including wealth generated by mandatory distributions or withdrawals from inherited individual retirement accounts as discussed in In re Marriage Dahm-Schell.[18] Further, the statute establishes guidelines for determining the amount of child support to be paid based on a certain percentage of the supporting party’s net income as established in In re Marriage of Rogers.[19] Additionally, courts have the discretion to deviate from these guidelines if the court deems that the amount generated is inappropriate when looking at factors like financial resources and needs of the child, the standard of living of the child if there was no divorce, and the physical and emotional condition of the child, as discussed in In re Marriage of McGrath.[20] The statute also allows child support modifications under certain circumstances, but those modifications are not retroactive, as provided in In re Marriage of Petersen.[21] The statute, therefore, applies in all cases of marriage dissolutions involving children unless the court finds that using the statute's guidelines would be inappropriate.[22]


            In conclusion, there is a wide array of governing case law that goes hand-in-hand with the statutory law of 750 ILCS 5/503, 5/504, and 5/505, such that this brief law article cannot address all the synergies across the gamut.

[1] Rewrite of the Marriage and Dissolution of Marriage Act, Pub. L. No. 99-0085, 99-0090 750 ILCS 5/503, 5/504, 5/505.

[2] In re Marriage of Amyette, 229 N.E.3d 526 (Ill. App. 2023).

[3] Id. at 529.

[4] Id. at 538.

[5] Id. at 537.

[6] Id.

[7] Id. at 538.

[8] Id.

[9] Id.

[10] Id. at 539.

[11] Blum v. Koster, 235 Ill. 2d 21, 42 (2009).

[12] In re Marriage of Heroy, 89 N.E.3d 296, 304 (Ill. 2017).

[13] 750 ILCS 5/504 (b-1)(1)(A).

[14] In re Marriage of Brill, 87 N.E.3d 302, 312 (Ill. App. 2017).

[15] 750 ILCS 5/504 (b-1)(1)(B).

[16] In re Marriage of Churchill, 126 N.E.3d 779, 786 (Ill. App. 2019).

[17] Id.

[18] See In re Marriage of Dahm-Schell, 185 N.E.3d 1269, 1274 (Ill. 2021) (the Illinois Supreme Court holding that the inherited IRAs and the distributions therefrom should be included in the calculations to determine child support payments).

[19] In re Marriage of Rogers, 213 Ill. 2d 129 (2004).

[20] In re Marriage of McGrath, 970 N.E.2d 12, 15 (Ill. 2012).

[21] In re Marriage of Petersen, 955 N.E.2d 1131, 1136 (Ill. 2011).

[22] Supra n. 15.