New year, new rules

Maintenance guidelines could change as soon as Jan. 1

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.

December 2017

The year 2015 was the advent of maintenance guidelines in Illinois. The goal was to make maintenance awards more predictable and ensure support for financially dependent spouses under 750 ILCS 5/504. The legislature and divorce bar have had three years to weigh the effects, see the benefits and pitfalls and make adjustments to the maintenance guidelines.

After three years, three major changes are coming to Illinois in 2018 that will increase the number of litigants to whom the guidelines apply and likely reduce the duration of their maintenance awards. See P.A. 100-520 (eff. June 1, 2018). The law is scheduled to take effect on June 1, 2018, but a trailer bill is in the works to make it effective on Jan. 1.

The first major change to Section 5/504 is to double the combined gross annual income cap. Beginning in 2018, the guidelines will apply to divorcing couples with a combined gross annual income of less than $500,000 — twice the original $250,000 cap. For couples at $500,000 or above, and in situations where the payor has a child support and/or maintenance obligation from a prior relationship, courts will continue to award maintenance as they have in the past by relying on the factors set forth in Section 5/504(a) instead of the statutory guidelines.

These factors include things like the age, health, income, property, needs and contributions of each party; their realistic present and future earning capacity and any impairment thereto; their financial obligations as a result of the divorce; the standard of living and length of the marriage; domestic duties and the time necessary to acquire appropriate education, training and employment; any parental responsibility arrangements and its effect on the party seeking employment; and all sources of public and private income including disability and retirement income.

Once the court determines maintenance is appropriate, it shall award maintenance either in accordance with the guidelines or not. Although the court is not required to order guideline maintenance, a judge who awards nonguideline maintenance must make specific findings of fact stating the reason for any variance in amount or duration and include references to each relevant factor set forth in Section 5/504(a). The court must also state the amount or duration of maintenance that would be required under the guidelines.

The second major change to Section 5/504 impacts the duration of maintenance. The duration is calculated by multiplying the length of the marriage by a percentage ranging from 20 percent to 80 percent depending on the length of the marriage. Beginning in 2018, the step-up provisions change significantly. Instead of grouping years together in five-year blocks (i.e., five to 10 years, 10 to 15), the formula assesses a new percentage for each year of marriage up to 20 years. See 750 ILCS 5/504(b-1)(1)(B).

Previously, for marriages lasting five to 10 years, maintenance would have continued for 40 percent the length of the marriage at the time the action was commenced. Now, in a seven-year marriage, the maintenance award will continue for only 32 percent that length. In an eight-year marriage, it will continue for 36 percent that length and so on. This example shows the drastic reduction in the duration of maintenance coming in 2018.

In a marriage less than five years, the maintenance duration is still 20 percent, the same as it was before, and in a marriage of 20 years or more, the court may order maintenance for an indefinite term or for a period equal to the length of the marriage. The word “permanent” was deleted and replaced with “indefinite term” in Section 5/504(b-1)(1)(B).

The third significant change to Section 5/504 is the express authority of the court, in its discretion, to award a corresponding credit to the payor for the duration of temporary maintenance he or she paid during the divorce proceedings under 750 ILCS 5/501. See 750 ILCS 5/504(b-1)(1.5).

While unique circumstances, such as a short marriage and deliberately protracted divorce proceedings, may warrant this credit, it seems unfair to penalize a payee for temporary maintenance received during the divorce proceedings, particularly when marital income is being used to pay maintenance. In other words, the payee is receiving temporary maintenance from her own marital property during the divorce proceedings.

Although the payor is the one ordered to pay maintenance, he usually pays it with marital property (e.g., his paycheck) that belongs likewise to his spouse. The payor should not reap the benefit of paying a shorter duration of maintenance post-decree simply for supporting his spouse and family during the marriage, as he is legally obligated to do, particularly when he is paying temporary maintenance with marital funds.

Moreover, where the temporary maintenance and post-decree maintenance amounts differ, or where the payee must use maintenance to fund family and household expenses, a corresponding credit to the duration of maintenance seems unjust. This is also a blow against payees whose duration of guideline maintenance is already limited by the commencement date of the action rather than the full duration of the marriage.

The capable judges in domestic relations will be able to ferret this out, but the new corresponding credit under Section 5/504(b-1)(1.5) coupled with the change in duration percentages under 5/504(b-1)(1)(B), will surely prompt more litigation.