Ending a marriage is almost never easy. Even when it’s amicable, working through the details can be a complex process—especially the financial details.
In Illinois, there’s no “my money” and “your money.” The state treats marital income as a marital asset that belongs to both spouses.
As a couple goes through the process of separating and ultimately divorcing, both must find a way to move forward financially. Maintenance plays an important role in ensuring you both have the means to get on with your new, separate lives.
So, how is maintenance calculated in a divorce? Here’s how it works in Illinois.
What is Maintenance?
Maintenance is cash one spouse pays to the other after the relationship ends. Also called alimony or spousal support, maintenance is sometimes awarded as part of a divorce settlement, especially if one spouse earns substantially less income than the other. But it’s not mandatory in every case, and a maintenance award is very case-specific.
A judge may award spousal support if the couple’s financial circumstances warrant it. In that case, the higher-earning or wealthier spouse must pay support to the other.
The cost of divorce maintenance will vary based on the amount of the payments and how long the obligation lasts. Maintenance may last a few years or many years, even decades.
Maintenance is not child support. Child support is the money one parent pays to the other parent after divorce or separation to help with the expenses of raising the couple’s child or children. Maintenance is paid in addition to any child support awarded. Also, one may outlast the other – maintenance may run longer than child support, or vice-versa, depending on the circumstances.
In Illinois, there are two sets of maintenance rules. “Guideline” maintenance applies to couples with a combined net income below $500,000. For couples with a combined income above $500,000, the courts have wide latitude to determine maintenance using a set of factors described in the Illinois maintenance law.
If the couple’s combined net income is less than $500,000, and the higher-earning spouse has no child support or maintenance obligations from a previous relationship, the guideline maintenance rules apply.
For guideline maintenance, Illinois courts use a formula to determine how much maintenance should be in each case. If a judge deviates from using the formula in setting the amount of maintenance, they must give their reasons for doing so in their ruling.
Who Can Receive Maintenance?
The maintenance rules laid out in the Illinois Marriage and Dissolution of Marriage Act apply to couples divorcing, legally separating, or dissolving a civil union. The law is gender-neutral. That means either partner may receive support or pay it, regardless of their gender or the gender of their spouse.
If one person asks for spousal support and the other contests it, the divorce judge will first decide if maintenance is appropriate. That decision will begin with reviewing any existing agreements the couple has, like a prenuptial or postnuptial agreement. Those agreements, if valid, may restrict or alter maintenance – or waive it for one party or both altogether. Such agreements supersede Illinois law on the topic of spousal maintenance.
Such an agreement may stipulate that there will be no maintenance. But that doesn’t necessarily mean a judge won’t award alimony. In Illinois, the court can override an agreement that creates an undue hardship for the spouse asking for maintenance – but cases like this are extremely rare.
If there is no agreement or an existing agreement is contested, the judge would decide the question of spousal support. That starts with a review of the couple’s finances and situation, including:
- Each person’s income and all sources of that income, including private and public like wages, pensions, disability, retirement savings, etc.
- Each person’s realistic earning capacity, both currently and in the future
- Any impairment of the realistic earning capacity of either person
- Whether the person seeking maintenance can support themself through employment
- The effect of parental responsibilities, especially as it relates to getting and keeping a job
- Each person’s property, including marital and non-marital property
- Any financial obligations each person will have as a result of the divorce
- How maintenance will affect each person’s taxes
The judge will also consider how the marriage has affected each person’s past, present, and future earnings. That includes:
- Whether either person gave up or postponed getting an education or building a career because of the marriage
- How the person asking for maintenance supported and/or contributed to their spouse’s education, training, career, or license
- How long it would take for the person requesting maintenance to get education, training, and employment
The judge will also consider the marriage itself, looking at things like:
- How long the marriage lasted
- The standard of living the couple shared during the marriage
- Each person’s age and health, and their needs
- Anything else that might be relevant to a fair settlement
If the judge determines that alimony is appropriate, the next step is calculating how much it will be and how long it will last. In Illinois, there are formulas for both.
How is Maintenance Calculated in an Illinois Divorce?
Each couple’s circumstances are unique, so each divorce is different. The judge will determine how much weight to give to each of the factors above.
The formula has changed in recent years. The current formula took effect on January 1, 2019.
Illinois Maintenance Formula Before 2019
Before January 1, 2019, the cost of divorce maintenance was based on the gross income of both spouses. The basic formula was pretty simple.
It called for maintenance to equal 30% of the paying spouse’s gross income minus 20% of the receiving spouse’s gross income. However, the amount of spousal support can’t be more than 40% of the couple’s combined gross income.
So, if one spouse earns $100,000 per year and the other $10,000 per year, their combined gross income is $110,000. The formula would look like this:
($100,000 x 0.30) – ($10,000 x 0.20) = maintenance per year
$30,000 – $3,000 = $27,000 per year
Now add $27,000 to the receiving spouse’s $10,000 income. That’s $37,000.
And since 40 percent of their combined gross income ($110,000) is $44,000, the calculated maintenance of $37,000 is appropriate under the formula guidelines.
This formula is still used for adjustments to maintenance awards pre-dating January 1, 2019.
How is Maintenance Calculated in an Illinois Divorce Today?
On January 1, 2019, maintenance calculations began using net income. That’s the amount of money you take home from each paycheck after taxes. Voluntary contributions like those for a retirement plan are not deducted to determine income for maintenance purposes.
Additional sources of income, like Social Security, pension benefits, investment income, and side jobs also count toward income for maintenance. Those income amounts minus any taxes or other expenses are included in your net income.
The basic formula for calculating maintenance is 1/3 of the paying spouse’s net income minus 1/4 of receiving spouse’s net income. Again, the amount of support awarded can’t be more than 40% of the couple’s combined net income.
Example: Chris’s net income is $100,000/year and Pat’s is $10,000/year. Pat is asking for support. If you plug their income numbers into the formula you get the following:
(0.333 x 100,000) – (0.25 x 10,000) = amount of maintenance
$33,333 – $2,500 = $35,833
Now the 40 percent test:
The couple’s combined income: $100,000 + 10,000 = $110,000, so 40 percent is $44,000.
Pat’s net income plus the calculated maintenance is 10,000 + 35,833 = $45,833. That is more than $44,000. So in this case, the judge would reduce the annual maintenance amount to $34,000 to uphold the 40 percent cap rule.
There’s a handy Illinois alimony calculator that can help you estimate your potential divorce maintenance costs or award, whichever is applicable. Be aware that the calculator is just an estimate, and your actual results from a court or by way of settlement may vary.
There’s no way to be 100% certain how much spousal support if any, a divorce judge might order. However, a caring and experienced divorce and family law attorney can help you protect your financial and personal interests.
Determining Non-Guideline Maintenance
Non-guideline maintenance refers to spousal support ordered when the combined annual net income of the divorcing couple is more than $500,000. In these cases, the judge is not required to follow the formula laid out in Illinois’ divorce law.
In these cases, the judge may determine the amount of support using the same criteria used to determine maintenance eligibility. Judges often use the guideline formula to develop an appropriate level of maintenance payments.
If the judge finds the amount determined using the formula is inequitable for either person, they can adjust the amount of the maintenance award accordingly. The court has wide latitude and discretion to make maintenance determinations.
Illinois Has Three Types of Maintenance Terms
The length of time maintenance must be paid varies from case to case. Illinois law provides for three types of maintenance duration: fixed-term, indefinite term, and reviewable. Generally speaking, in marriages under 20 years in length, the court will award either fixed or reviewable maintenance. In marriages over 20 years in length, the court will order indefinite maintenance or maintenance for a term equal to the length of the marriage.
Fixed Term Maintenance
Fixed Term Maintenance is typically ordered by a court in shorter marriages. The length of time they will receive maintenance is determined by the judge using a formula set forth in Illinois law and detailed below.
Once the term of the maintenance expires, additional spousal support is barred, and they’re on their own. The idea is to give them enough time to educate themselves and/or get a job so that the recipient of maintenance is able to live without support.
Indefinite Term Maintenance
Indefinite Term maintenance is also sometimes called “permanent” maintenance because no termination date is set. This type of maintenance is commonly awarded in marriages exceeding 20 years in length, as state law requires maintenance in marriages over 20 years either be indefinite or set at the length of the marriage.
Theoretically, a court could award indefinite maintenance in shorter marriages depending on the specific facts of the case. For example, if one spouse lost the ability to work, like after suffering a debilitating injury, indefinite term maintenance is often granted.
Reviewable Term Maintenance
Reviewable Term maintenance is similar to fixed-term maintenance in that the judge sets a specific length of time the spousal support will be paid. The difference is that with reviewable term maintenance, the courts can order that maintenance payments continue after the initial end date.
The receiving spouse must ask for a review and extension before a preset deadline, or the maintenance will automatically stop when the term expires. At the review, the judge will examine each person’s current financial situation.
If the judge determines the receiving spouse has achieved financial independence, the maintenance will likely be allowed to terminate. The judge can extend maintenance payments if appropriate.
In our experience, courts tend to prefer reviewable maintenance over fixed-term maintenance, which gives the recipient a chance to extend receipt of maintenance if it is warranted. Courts generally favor this flexibility to address the widely varying facts of people’s situations and the likelihood they will change perhaps substantially over time in unpredictable ways.
How Long Does Maintenance Last?
Just as the courts use specific formulas to calculate the amount of alimony to be paid, there are formulas to calculate the length of time maintenance will last. The formula for the length of maintenance is directly tied to the length of the marriage.
The formulas used to calculate the maintenance term have changed over the past decade.
Calculating Maintenance Duration
Illinois divorce law sets out specific criteria for how long maintenance obligations last. The duration is based on a specified percentage of how long the marriage lasted. So, the longer it lasted, the longer the maintenance payments must be made. The length of the marriage is measured from the date of the wedding to the date the divorce case is filed, not the date the divorce judgment is granted.
To calculate the maintenance duration, multiply the amount of time the couple was married by the specified percent:
- Less than 5 years x 20 percent
- 5 years or more but less than 6 years x 24 percent
- 6 years or more but less than 7 years x 28 percent
- 7 years or more but less than 8 x 32 percent
- 8 years or more but less than 9 years x 36 percent
- 9 years or more but less than 10 years x 40 percent
- 10 years or more but less than 11 years x 44 percent
- 11 years or more but less than 12 years x 48 percent
- 12 years or more but less than 13 years x 52 percent
- 13 years or more but less than 14 years x 56 percent
- 14 years or more but less than 15 years x 60 percent
- 15 years or more but less than 16 years x 64 percent
- 16 years or more but less than 17 years x 68 percent
- 17 years or more but less than 18 years x 72 percent
- 18 years or more but less than 19 years x 76 percent
- 19 years or more but less than 20 years x 80 percent
- 20 or more years x 100 percent or indefinitely
For example, if Chris and Pat were married for seven years and six months, the length of time Chris would pay maintenance to Pat would be calculated as:
7.5 x 0.32 = 2.4 years.
Had they been married 14 years, it would be:
14 x .60 = 8.4 years.
If the judge finds the duration calculated is inappropriate, they can deviate from the formula. But the judge must state the reason for the deviation in their ruling. In our experience, it is highly unlikely for a court to deviate from the maintenance term formula.
As discussed above, situations that might warrant lengthening the maintenance term could include the partial or total disability of the receiving spouse.
Early Termination
There are three circumstances under which maintenance is terminated early.
- The person receiving support lives with someone on a “resident, continuing conjugal basis” (also known as cohabitation);
- The person receiving support remarries;
- If either of the former spouses dies.
The maintenance payments stop on the date of the terminating event. The person paying alimony (or their estate) is entitled to be reimbursed for any payments made after that date.
Courts are extremely reluctant to terminate maintenance based on cohabitation – living together with another person. Even though Illinois law states that this is a basis for termination of maintenance, courts have twisted and turned every way possible to find that the parties aren’t cohabitating “enough” to warrant termination. Illinois appellate court law on this topic states that the parties must be living in a “de facto marriage” in order to terminate maintenance based on cohabitation – yet this is nowhere in the state law.
Courts may require the support payor to provide life insurance at the payor’s expense to secure payment of maintenance. This may seem paradoxical since maintenance terminates upon the death of the payor, but the public policy theory is that death of the payor before maintenance payments would have terminated leaves the recipient in a precarious financial situation. Typically the court will have the payor repurpose existing coverage in part or in whole to secure maintenance, but could also require a payor to purchase new coverage. This would be rare for older people (for example, people over the age of 60) where new life coverage would be cost-prohibitive.
Note that termination under these circumstances is not automatic. Unless the support payor can enter into an agreed court order with the recipient, the payor must still file a petition to terminate support under 750 ILCS 5/510 – and obtain a court order terminating support.
Protecting Your Rights
So, how is maintenance calculated in a divorce? As you can see, in Illinois that depends on a lot of variables, as well as the opinions of the divorce court judge.
Maintenance can be an essential part of an equitable divorce settlement. Understanding the nuances of Illinois’ maintenance guidelines can be confusing. Having the support of an understanding and experienced divorce attorney can help you get a fair settlement.
You can learn more about your legal rights and obligations under Illinois law with our Ultimate Guide to Maintenance in a Divorce.
