HOW THE COURT DETERMINES MAINTENANCE PAYMENTS

Introduction

The awarding of maintenance in Illinois seems to have been consistent between the years 2015 to 2018. The statutes give clear guidelines as to how the awards should be distributed, and courts are given great discretion in using facts on a case-by-case basis to determine how the statute should be applied. In cases of ambiguity, this is especially clear, and marital agreements are treated like contracts in ambiguous situations, where courts have the discretion to work out any perceivable ambiguities. Despite the discretion granted to courts, certain aspects in maintenance awards have been established through precedent. This includes retrospective application of maintenance, as well as what can be taken into account when determining the financial status of a party involved. The following article will discuss these various factors and the statutes at issue.

2015-2016

The Court may grant a temporary or permanent maintenance award in amounts and for periods of time they deem just after consideration “of all relevant factors.” In re Marriage of Johnson, 47 N.E.3d 1061, 1075 (Ill. App. 2016). These factors include the income and property of the parties, including marital property apportioned and nonmarital property assigned to the party seeking maintenance and the relevant statutory factors in establishing a maintenance award. Id. at 1076. The statute for maintenance is 750 ILCS 5/504, and the following factors are listed in the statute for courts to consider in determining the propriety, amount and duration of maintenance:

“(1) each party’s income and property, including marital property apportioned and nonmarital property assigned to the party seeking maintenance; (2) each party’s needs; (3) each party’s present and future earning capacity; (4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage; (5) the time necessary to enable the party seeking maintenance to obtain appropriate education, training, and employment, and whether that party is able to support herself through appropriate employment; (6) the standard of living established during the marriage; (7) the duration of the marriage; (8) the parties’ age and physical and emotional condition; (9) the tax consequences of the property division upon the parties’ respective economic circumstances; (10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse; (11) any valid agreement of the parties; and (12) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/504.

In re Marriage of Johnson, 2016 IL App (5th) 140479, 94, 47 N.E.3d 1061, 1076-77.

Previous case law has also established guidelines for courts to follow when interpreting the statute and marital agreements. For example, as regard to (6), “the standard of living established during the marriage,” courts have said that a spouse “should not be required to lower the standard of living established in the marriage as long as the payor spouse has sufficient assets” to meet both his and his former spouse’s needs. Shen v. Shen, 35 N.E.3d 1178, 1195 (Ill. App. 2015). Therefore, unless a spouse finds themselves in a situation where they are unable to afford to maintain the same standard of living present during their years of matrimony, they are expected to maintain that standard of living enjoyed in their years of marriage. Case precedent has also set out a significant standard for courts to follow as regard to pre-emptive termination of future maintenance. It has been ruled in the same case quoted above (i.e., Shen) that a trial court cannot pre-emptively terminate future maintenance when it lacks knowledge of the spouses and potential financial circumstances in that period. Id. In Shen, a trial court had ordered a spouse’s maintenance to terminate upon her becoming eligible for Social Security, and the appellate court reversed, holding that this decision should be decided “at that time and not now.” Id. In summary, courts cannot act as if they are fortune tellers with a crystal ball. Pre-emptive decisions are beyond the scope of a court, and to engage in the practice of prediction in order to rule on marital agreements is beyond the courts’ discretion.

In the case of Cole, it was found that new maintenance guidelines that were substantive in nature could not apply retroactively to a past award of maintenance. In re Marriage of Cole, 58 N.E.3d 1286 (Ill. App. 2016). In other words, substantive guidelines from 2016 cannot be used to apply retroactively for proceedings that took place in 2014. In the Cole case, the proceedings for the dissolution of marriage of the parties involved had all taken place in 2014, and the husband could not apply maintenance changes from 2015 to that case. Id. at 1290. The changes to the maintenance statute that were at issue were found to be substantive in nature, as they altered “the method for determining a maintenance award and address the rights underlying a dissolution proceeding.” Id. In contrast, the old statute had used these same factors at issue, but instead to determine whether the maintenance awarded was appropriate, given the circumstances. Id. In summary, the court said that the new statute refined an individual’s right to maintenance and was “therefore … substantive.” Id.

2018

The factors used in the 2015 statute remain for maintenance awards. Guidelines for setting the duration of a maintenance award and a method of calculation were discussed in Carstens; they are set out below:

“(b-1) Amount and duration of maintenance. If the court determines that a maintenance award is appropriate, the court shall order maintenance in accordance with either paragraph (1) or (2) of this subsection (b-1):

(1) Maintenance award in accordance with guidelines. In situations when the combined gross income of the parties is less than $250,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.

(A) The amount of maintenance under this paragraph (1) shall be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. The amount calculated as maintenance, however, when added to the gross income of the payee may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.

(B) The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: 5 years or less (.20); more than 5 years but less than 10 years (.40); 10 years or more but less than 15 years (.60); or 15 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

(2) Maintenance award not in accordance with guidelines. Any nonguidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.” 750 ILCS 5/504(b-1).”

In re Marriage of Carstens, 2018 IL App (2d) 170183, 31, 101 N.E.3d 181, 190-91.

In Harms, it was found that guidelines that governed initial spousal maintenance awards are not applicable in proceedings to modify preexisting maintenance awards. In re Marriage of Harms and Parker, 103 N.E.3d 979 (Ill. App. 2018). In other words, if there is a proceeding to modify the awarded maintenance, the new guidelines for maintenance should apply. At issue in the appellate court proceeding were whether guidelines for the award of maintenance in 2018 were appropriate to apply in proceedings to modify maintenance that was undergone prior to the 2015 maintenance amendment. Id. at 618. The cases in 2018 reinforce the principles discussed in the 2015 cases, and statutory maintenance guidelines have not changed since a 2015 amendment to the guidelines.

Summary

The statute governing maintenance guidelines has not changed since the 2015 maintenance amendment, and courts have used the same standards set by case law through these years. Substantive changes to new maintenance guidelines cannot be applied retroactively, but current maintenance guidelines can be used to alter pre-existing guidelines. The court cannot speculate on potential future circumstances in order to guide determinations of maintenance payments.