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Maintenance (Alimony) Issues in Illinois Divorce Proceedings

To get answers to frequent questions about maintenance (alimony) issues in Illinois divorce proceedings, please select one of the links below:

• What is maintenance?
• Is there more than one type of maintenance?
• What factors does the court consider in determining whether I am eligible for maintenance?
• Will my maintenance award be sufficient to allow both me and my spouse to live at the standard of living which we established during the marriage?
• Will my maintenance terminate if I live with someone?
• Can maintenance be modified or terminated?
• Does the maintenance paying spouse's retirement terminate or decrease maintenance?
• What is unallocated maintenance?

What is maintenance?

Maintenance is often referred to as either alimony although states outside of Illinois often refer to it as spousal support. Maintenance is a person’s right to support from her or his spouse – as opposed to child support.

Is there more than one type of maintenance?

Yes. When parties have been married for many years and one spouse is far less able to achieve a life style comparable to that enjoyed during the marriage, the court may award permanent maintenance.

The other forms of maintenance are:

• Temporary maintenance which is awarded prior to the parties obtaining a dissolution of their marriage,

• Rehabilitative maintenance which is awarded to a spouse usually for a specific period of time which the court believes it will take for him or her to return to the job market and become self-supporting, and

• Reviewable maintenance which is reviewed by the court after a specified period of time to determine whether the recipient has become self-supporting at which time the maintenance award can be modified, extended or terminated.

Depending upon the facts and circumstances of the case, sometimes rehabilitative maintenance is set without a review and sometimes with a review.

What factors does the court consider in determining whether I am eligible for maintenance?

The court considers a number of factors in determining whether or not maintenance is appropriate and if so, how long of a period of time a spouse should receive maintenance and the amount of maintenance which should be awarded. The court must factors that include:

• The length of the marriage;
• The disparity in the earnings of the parties;
• Whether there are children of the marriage and if so, which party will be the residential parent upon a dissolution of marriage;
• whether one spouse has given up career opportunities due to the marriage;
• The age of the parties;
• The health of the parties;
• Each party's ability to acquire income and assets in the future; and
• The standard of living established during the marriage.

Will my maintenance award be sufficient to allow both me and my spouse to live at the standard of living which we established during the marriage?

Often times the answer is no since this is not economically feasible. The standard of living established during the term of the marriage is one of the factors the court uses to determine the amount and term of the maintenance award.

However, it is not uncommon for neither party to be able to afford to maintain the same standard of living since it is often more expensive for a couple to live separately than together.

Will my maintenance terminate if I live with someone?

Under most circumstances maintenance will terminate if the recipient lives with another person on what is referred to as a “resident, continuing, conjugal basis.”

In determining whether you are living with another person on a resident, continuing, conjugal basis, the court looks at the facts of your particular case such as the economic impact resulting from the relationship and the degree to which the relationship is like a marriage or more like a house sharing arrangement.

Can maintenance be modified or terminated?

The general rule is that maintenance awards are modifiable if there is a substantial change in circumstances. The parties may agree to make maintenance non-modifiable. Also, unless otherwise specified, a maintenance award will terminate upon the death, remarriage or cohabitation of the spouse receiving maintenance.

Does the maintenance paying spouse's retirement terminate or decrease maintenance?

Whether or not voluntary retirement will justify modification of an existing maintenance award depends upon the circumstances of the individual case. The relevant factors which are considered by the court include the age, health status, motives and timing of the retirement, the payor’s ability to continue to pay maintenance after retirement, and the other spouse's ability to provide for him or herself.

What is unallocated maintenance?

In many cases, a spouse or ex-spouse is ordered to pay both child support and maintenance. The payor spouse will often times be in a higher tax bracket than the recipient spouse. Consequently, there may be a significant tax savings if the payor spouse pays unallocated maintenance to the recipient spouse which is a sum sufficient to support both the children and the spouse, but is not allocated between child support and maintenance. Such an award may increase the available net income for the recipient spouse.

Drafting enforceable unallocated maintenance awards requires an attorney who has significant knowledge of the tax laws and divorce law. However, if done properly, an unallocated maintenance award may result in a “win-win” situation for both parties because of the income tax savings.

For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at info@aaml-illinois.org.