There is a prevailing misconception among many that spousal maintenance is always awarded in Illinois divorces, and this is simply not the case. Multiple questions and factors go into determining whether a grant of maintenance is appropriate, and sometimes the answer may go against a husband or wife who may actually be in need. Hence, if you are going through such a case, it is a good idea to consult a lawyer knowledgeable on this subject.
Several factors are taken into account by judges when determining whether spousal maintenance is necessary, either during or after divorce proceedings. The list may seem to split hairs, but given the amount of assets that most couples have, and the complexity of disentangling most couples’ lives, it is necessary to investigate every issue. Factors include (but are not limited to):
- The income and current assets of each spouse (if possible, including marital assets already divided);
- Each spouse’s current and future earning potential;
- If there are children, the issues surrounding support and care-taking—in other words, who may have to take reduced work in order to adequately care for the children, thus making less money;
- Whether the spouse seeking maintenance may have to update his or her skills or education in order to find a job in his or her field after time away for child rearing;
- Each spouse’s tax burden after the divorce (sometimes, the tax burden on those receiving significant marital property can be very high); and
- Any other issue that the court “expressly finds to be just and equitable.”
Be advised that Illinois’s maintenance statute specifically states that no regard will be paid to marital misconduct in determining whether maintenance is appropriate or not. This is not because Illinois jurisprudence holds that such issues should be irrelevant, but rather because to take marital misconduct into account would extend divorce proceedings to an untenable degree, and because so often, allegations of misconduct cannot accurately be proven in a satisfactory way beyond each spouse’s word against the other’s.
Prenuptial and Other Agreements
One other factor that courts will consider in determining whether maintenance should be awarded is the existence of a prenuptial agreement (or any postnuptial agreements executed by the parties). It is extremely common in Illinois, and many other states, to dispose of spousal maintenance issues in a prenup, or at the very least, to stipulate that the relevant family court will be the venue to consider such issues if they arise. This can occasionally cause problems if only because the couple’s finances or other situations in their lives may have changed between then and the time of the divorce. Yet generally, it saves time and trouble for the couple if nothing fundamental has changed between then and now.
Sometimes, though it is rare, a separation agreement will also contain language that deals with spousal support. Legal separations are not used much longer in the state of Illinois, since the requirement to have specific grounds for divorce has been abolished, but some people prefer them. However, if a couple is of the planning sort, they may choose to try out a legal separation, complete with maintenance payments for the spouse who is deemed to need them. If either of these agreements exist, a family court will almost certainly take them into account when trying to decide the issue of maintenance.
Ask a Skilled Attorney
Sometimes, getting spousal maintenance, at least for a while, can make the difference between solvency and bankruptcy, especially if you have children or have not worked in years. Contacting a knowledgeable attorney can help to set your mind at ease and to develop a clear plan for what you want moving forward.
The dedicated Will County divorce attorneys at Kezy & Associates are ready, willing, and able to help you with your spousal maintenance questions and can assist you as you move forward. Call us today to set up an appointment.