Michael Wurster:
Hi everyone, my name’s Michael Wurster. I’m an attorney here at Zanck, Coen, Wright and Saladin in Crystal Lake. I specialize mostly in family law even though I do do general law. Today I like to talk to you about a couple of updates and developments in the Illinois Marriage and Dissolution of Marriage Act which covers family law in Illinois.
Maintenance Law
The first major issue I’d like to talk about is starting in 2015, there’s a change in the maintenance law and it’s a big issue for most couples who get divorced…. how are you going to live post separating from your spouse. Stereotypically that normally has a much larger impact on the wives. More and more though men and women are making equal amounts of money. More and more women are getting into the workforce.
Men are working less and less, which means that we’re noticing more of an equalization of women starting to pay maintenance to their husband, but it is stereotypically a little bit more that husbands paid to their wives.
Before 2015 and 2016, 2017, it is continuing to have modifications in maintenance. It was kind of wide open. You had to look at the standard of living during the marriage with these certain factors and what the price income was, and then you try to argue what duration should be and how much maintenance should be. After the modifications, the court made it a lot simpler. You have a formula for running parties that make combined gross income of $250,000 or less.
In 2018, June 1st, it’s possibly going to go up to $500,000 gross income or less, but it simplifies and makes it a lot clearer not only the elements of whether you determine to be a candidate for maintenance, but to the duration of maintenance if you are determined to be a candidate and the amount. What you have to do when you’re requesting maintenance is first have the court determine that you’re actually a candidate for maintenance, and there’s a large list of factors on the statute that the court is going to look at. How long has the party been married, what were the spouse’s education and employment opportunities during the marriage, what sacrifices as a spouse has requested maintenance.
Normally they’re going to look at has one spouse basically given up employment or educational opportunities for domestic responsibilities which normally boil down to taking care of the children and taking care of the house. Stereotypical situation is there’s a wife who the party has been married for 20 years, they got married straight out of undergrad. She essentially didn’t get a job or maybe worked for a year or two and then they had kids. The parties agreed that she’d stay home. She’s taking care of the kids the entire time during the marriage. Maybe she went back to work after the kids went off to school, but she’s always made to $10 to $15 an hour working part time.
Maybe she makes between $15,000 to $30,000 a year, not quite a lot of money. Whereas the husband during that time, maybe he’s had 20 years of building his employment opportunities, his skills, maybe he’s got a master’s, and he continued to further his education and his ability to earn income while the wife was at home and she’s now stuck essentially at the age of maybe 40-50-60 years old with an inability to really increase her earning potential. Now maybe a husband who’s making $100,000 a year and a wife who’s making $30,000. If sothat’s the case, well we can never guarantee whether a judge will grant maintenance or not, there’s a decent chance that a judge will grant you maintenance because there’s a large disparity of income and based on those factors, more than likely you’re going to need to have at least a small period of time to rehabilitate yourself and start to earn potential.
For this circumstance, let’s just assume the judge finds that you’re a candidate which is step one. You’re deemed to not be a candidate, you don’t move on, you just don’t get maintenance, and that is essentially you’re barred for maintenance forever if you determine to not be a candidate for maintenance from the get-go.
What happens then is they’re going to look at the duration of the marriage, right? Based on the duration of the marriage, there’s a percentage of time that you’ll get for the maintenance payments, and what I mean by that is they’ve broken it up into five categories of maintenance duration.
If you’re married from zero to five years essentially which when I say essentially, that’s because it’s really from zero years of four years, 365 days. It’s really zero up to but less than five, and then greater than five years but less than ten years, greater than ten years less than 15, greater than 15 less than 20, and then 20 and above.
If you’re in that zero to four years and 365 days, it’s 0.2 duration.
Essentially if your duration is about four years, 365 days, we’re essentially talking about five years, so 0.205 is one year. Twenty percent of five is one. If you actually hit a 5-year marker, so just a change of one day, now you’re at 0.4 because a five to ten is 0.4, ten to 15 is 0.6, 15 to 20 is 0.8, and then 20 and above is permanent maintenance or maintenance for the duration of the marriage. When I say duration of the marriage, what I mean is it’s not how long you were legally married. It’s actually from the day you were married to the day that you petition for dissolution was filed.
That’s an important distinction because if you file your petition say nine and a half years into the marriage, but then a divorce goes on for another two years, you don’t get bumped up in that ten to 15 range of 0.6. You’re at the nine and a half. You’re at 0.4 of nine and a half years. When I talk about 20 years or greater, it is really permanent maintenance, and what I mean by that is it’s an indefinite period. There is no cutoff point. The judge can just say it’s permanent in duration until further court order. Otherwise, say you’re married for 26 years, the judge can say you’re entitled to maintenance for 26 years the duration of the marriage, again from the date you were married to the date the petition was filed whatever that duration is.
After that though, the next question is how much you’re going to get paid, and they’ve put a formula in which it’s pretty straightforward.
It’s 30% of the payor’s income minus 20% of the payee’s income with a cap of 40% of the combined parties gross income. When I say income, I meant to say gross income, not net. It’s before any tax or taken out. It should be anything that either party makes during the year. With that being the case, it should be somewhat cut and dry unless you do have a party whose gross income fluctuates quite a bit. Maybe they’re self-employed, so it’s going to be a question of what their gross income actually is. It might not be straightforward if they are getting paid a salary and W2. If that’s the case, it should be very straightforward.
Otherwise if you’re a candidate based on the elements, they’re going to decide what the duration is based on the date from marriage to the date the petition was filed, and then they’re going to calculate the maintenance based on each party’s gross income. That’s really one of the major issues that most parties come to us which is maintenance and hopefully that’s gives you a better understanding of where you might fit in if you do decide to get a divorce.