FindLaw KnowledgeBasePublished: 2013-01-18
When a married couple divorces or legally separates in Illinois, sometimes the family circumstances indicate that one of the spouses should receive support payments from the other after going their separate ways. Spousal maintenance, also called alimony or spousal support, is the transfer of money from one former spouse to the other on an ongoing basis — usually monthly — as part of the divorce decree.
Spousal maintenance is not automatically awarded, and it is different than and separate from child support.
Parties to a divorcemay negotiate a settlement that includes a spousal maintenance provision, and that settlement agreement must be approved by the court if it is reasonable. The settlement terms then become part of the court’s divorce decree. In Illinois, the court will approve an agreed-to alimony arrangement so long as it is not unconscionable, meaning severely unjust or extremely unreasonable considering the financial realities of the separating parties.
If the court finds the spousal maintenance agreement unconscionable, it can either ask the parties to renegotiate it or the judge can devise an alimony arrangement.
If the spouses are not able to negotiate an acceptable agreement on spousal support, the judge will have to determine whether it is appropriate under the circumstances, and fashion the payment amounts, duration and schedule. Maintenance may be for a set term, indefinite or set for later review. The parties will be able to submit relevant evidence to the court.
Illinois statute not only requires the judge to consider “all relevant factors” in determining maintenance, but also sets out specific factors the court must consider:
- Property and income available to each spouse
- Each party’s needs
- Current and future earning capacities
- For the spouse seeking alimony, affect on earning capacity of time spent in the marriage performing “domestic duties” or giving up career and educational opportunity for the sake of the marriage
- For the spouse seeking maintenance, how long it would take to get training, education and a job to support him or herself; or whether that spouse has responsibility for a child whose needs preclude that spouse from working
- The marital standard of living
- How long the parties were married
- Each spouse’s age and “physical and emotional condition”
- Tax concerns
- Contribution of the spouse asking for support to the career of the other party
- Valid agreements between the spouses
- Other factors that the judge considers “just and equitable”
Significantly, the Illinois maintenance law states that the court may not consider “marital misconduct” in its consideration of alimony.
Each marriage unique
The question of spousal maintenance is very fact-specific to each marriage, looking at the need of one spouse for support and the ability of the other to provide it in the context of their individual qualities and history together.
However, Illinois courts do look at certain issues. For example, they place some weight on the hope that perhaps the parties will not have to be tied to each other indefinitely. A spouse may need alimony on a temporary basis while he or she gets job training or takes courses to prepare for employment that may allow eventual partial or complete self support. This type of alimony is called “rehabilitative maintenance,” which also requires that the receiving spouse take concrete steps to achieve at least a measure of financial independence.
On the other hand, some circumstances make permanent alimony almost certain, such as when one spouse is disabled and will always need support.
Unless the parties’ agreement provides otherwise, an alimony award may be later modified by the court if the parties’ circumstances change. However, in Illinois it is difficult to challenge a judge’s spousal maintenance decision on appeal, where it can only be overturned if the trial judge abused his or her discretion.
A new 2012 provision allows the court to order the paying spouse to obtain life insurance to protect the receiving spouse’s financial needs should the payor spouse die during the spousal maintenance obligation.
Spousal support issues are complex questions of law in Illinois. If you face divorce or are considering requesting a modification of such an award, discuss your situation with an experienced family law attorney to understand your options.