Out of focus

Application of maintenance guidelines is unclear

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.

September 2019

Sweeping changes to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) over the last five years have kept the divorce bar on its toes. It is hard to keep track of all the changes and even harder to tell which version of the statute applies to which case.

The confusion is apparent, especially in maintenance modification proceedings, where the appellate districts are split on whether — and when — to apply the guidelines in determining the amount and duration of maintenance under Section 504(b-1) of the act.

Section 801(c) of the act states, the amended act “applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this act.” (750 ILCS 5/801(c) (P.A. 99-90, eff. Jan 1, 2016).

Thus, in In re Marriage of Benink, 2018 IL App (2d) 170175, the amended statute did not apply because the parties filed their post-judgment modification petitions prior to January 1, 2016. Conversely, in In re Marriage of Carstens, 2018 IL App (2d) 170183, the amended statute and maintenance guidelines did apply because the motion to modify maintenance was filed in February 2016, a month after the effective date.

Use of the word “modification” in Section 801(c) has led some to believe this subsection applies only to maintenance modification cases filed after January 1, 2016, and not to maintenance review cases. However, the majority opinion in the 4th District case of In re Marriage of Kasprzyk (2019 IL App (4th) 170838), dispels this belief, holding that under the act, “petitions to terminate are treated the same as petitions in modification proceedings” for purposes of Section 801(c).

The only difference is, in review proceedings, the court grants authority to revisit the initial maintenance order, whereas in termination or modification proceedings, the legislature provides authority upon proof of a substantial change in circumstances to terminate or modify the maintenance award. In either case, according to Kasprzyk, the act requires consideration of the factors in Sections 504(a) and 510(a-5) and application of the Section 504(b-1) guidelines in determining the amount and duration of maintenance, unless the court finds the guidelines are inappropriate.

Justice John W. Turner dissented in Kasprzyk, contending the guidelines do not apply in maintenance review proceedings because there is no mention of them in Section 510. His view is consistent with the holdings in In re Marriage of Kuper, (2019 IL App (3d) 180094); In re Marriage of Harms (2018 IL App (5th) 160472); and the unpublished case of In re Marriage of Grimm (2019 IL App (3d) 170840-U). In each case, the appellate court held Section 504(b-1) does not apply to post-dissolution maintenance modifications.

Rather, Section 510, which governs the modification and termination of maintenance, “directs courts to consider the factors contained in [S]ection 504(a) but makes no mention of the guidelines in [S]ection 504(b-1).” Accordingly, the amount of modified maintenance should be based on the factors set forth in Section 504(a) instead of Section 504(b-1)(1).

A novel issue posed by these cases, but left unanswered, is the effect of the addition of Subsection (b-8) to Section 504. (750 ILCS 5/504(b-8) (P.A. 99-763, eff. Jan. 1, 2017). Subsection (b-8) provides: “Upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed nonmodifiable term, extend maintenance for an indefinite term or permanently terminate maintenance in accordance with [S]ubdivision (b-1)(1)(A) of this [s]ection.”

In both Kasprzyk and Carstens, the parties argued the failure to refer to Subsection (b-1)(1)(B) in Section 504(b-8) indicates the legislature did not intend duration guidelines to apply in maintenance modification or review proceedings.

Although the majority opinions did not reach the broad question posed, Turner, in the Kasprzyk dissent, did address the issue. He agreed that, had the legislature intended the duration guidelines to apply to a maintenance review proceeding, it would have referenced Subsection (b-1)(1)(B) in Section 504(b-8). As such, he would have allowed the trial court to exercise its complete discretion on the duration of maintenance without any regard for the guidelines.

While Turner’s dissent may well end up a majority view, for now there is no clear consensus on the effect of the 2017 amendments to Subsection (b-8) or application of the maintenance guidelines in maintenance modification or review proceedings filed after January 1, 2016.

The split among appellate districts and dissenting view in Kasprzyk, makes these questions ripe for Supreme Court review.