“Maintenance” is the very same thing as alimony in a divorce; we simply don’t call it that anymore. Maintenance is also sometimes referred to as “spousal support.” It is a court-ordered provision paid to one spouse by the other upon divorce, often in fixed intervals for a finite amount of time.

Contrary to common belief, maintenance is not based on gender. In Will County and the state of Illinois, an ex-wife is no more entitled to support payments than is an ex-husband. Instead, maintenance is typically paid to the spouse that earns less during the marriage, especially if that spouse has made significant financial and/or career sacrifices to raise children or look after the home. That is, the “stay-at-home mom” or “stay-at-home dad” would, under the appropriate circumstances, be the party more likely to receive maintenance if the couple gets divorced.

Yet there is no single factor that guarantees either spouse will receive maintenance. The judge presiding over the divorce case is given a lot of discretion on the matter. Divorce law in Will County and the state of Illinois says a judge may grant maintenance “in amounts and for periods of time as the court deems just.” The statute delineates 12 factors a judge should consider when determining whether maintenance is appropriate and to whom it should be given. These factors include:

  • the duration of the marriage (e.g., the under-earning spouse in a marriage of 25 years is much more likely to receive court-ordered maintenance than if the marriage lasted only 3 years);
  • the needs of each party (the spouse requesting maintenance must demonstrate an actual financial need for things like food, shelter, electricity/gas, etc., and the other spouse must be fiscally able to pay the requested maintenance);
  • the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
  • the present and future earning capacity of each party (e.g., if one spouse is disabled and unable to work, s/he is more likely to be awarded support);
  • 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 (this factor is sometimes referred to as the “Homemaker Contribution”);
  • the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
  • the standard of living established during the marriage;
  • the age and the physical and emotional condition of both parties;
  • the tax consequences of the property division upon the respective economic circumstances of the parties;
  • contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
  • any valid agreement of the parties (prenuptial and post-nupital agreements will generally be enforced); and
  • any other factor that the court expressly finds to be just and equitable (notice how this leaves the matter open to the judge’s discretion).

Note that maintenance is awarded or denied without any regard to marital misconduct. This means, for example, if a marriage ends because one spouse cheated on the other, the “bad” spouse will be no less likely to receive maintenance, and no more likely to be ordered to pay maintenance, than if the parties divorced amicably. The main purpose of maintenance payments is rehabilitative, designed to give the under-earning spouse a chance to establish financial independence without taking a drastic blow to their customary standard of living.

Note also that maintenance is entirely separate from child support; the provision of one in no way influences the provision of the other. Yet there are additional differences as well: Unlike child support, the spouse receiving maintenance must pay taxes on it if, and the spouse paying the maintenance is allowed to write it off on their own taxes.

Finally, as mentioned above, court-ordered maintenance payments are usually only temporary, calculated to last only as long as the receiving spouse is believed to truly need it. Yet in some rare cases a court will order permanent (i.e. indefinite) maintenance. This usually only occurs in cases of a lengthy marriage and a disability that permanently prevents one spouse from supporting him- or herself. However, even “permanent” maintenance orders will terminate upon the death of either party, or if the party receiving maintenance remarries (or cohabits with another person on a continuing conjugal basis). Whether cohabitation with an unmarried partner warrants termination of spousal support depends on the specific facts of the relationship.

Because so much is left to the judge’s discretion when it comes to maintenance in an Illinois divorce proceeding, it is essential that you consult an experienced family law attorney familiar with the predilections and proclivities of the different judges in Joliet, Will County divorce courts. To speak to an attorney regarding your situation, please contact Hamilton & Antonsen at 815.729.9220.

Written by: Sarah Hannekin