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Posted on in Alimony

spousal maintenance, Kane County divorce lawyerDespite the rise in divorce in American culture in the last few decades, there are still a number of pervasive misconceptions about the process and the laws that govern it. In many cases, these misunderstandings are the result of overly simplified, dramatic depictions of divorce in movies, television, and music. Among the most common misconceptions is the cultural notion of spousal maintenance, or alimony, and whether one spouse—traditionally the wife—is entitled to it.

History of Spousal Maintenance

Alimony laws have evolved over the years and have been particularly impacted by changes to the related statutes regarding asset division in divorce. Prior to 1977, Illinois law required property to be allocated in divorce according to the asset’s registered owner. In practice, this meant that most divorce situations left a husband with most of the property and the wife with very little. Therefore, courts frequently required the divorcing husband to make support payments, often on a permanent basis.

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life insurance, Kane County family law attorneyThere are many different types of life insurance policies available to provide a level of financial security for your loved ones. While the type of policy you choose should be based on your needs and those of your family, the intended result of each is similar: upon your death, your chosen beneficiaries will receive the proceeds of the policy, known as death benefits. Life insurance can be instrumental in protecting your family from financial hardship in the event of an accident or unforeseen tragedy, but, in a divorce situation, it can also serve another purpose. By agreement or by order of the court, a life insurance policy may be used to guarantee payment of spousal maintenance and child support.

Spousal Maintenance Security

Unless otherwise addressed, a party’s obligation to pay spousal support ends upon the death of either party. Of course, if you have been ordered to make maintenance payments, your untimely death could leave your ex-spouse in dire financial circumstances. There are several life insurance options available to prevent such a situation. If you already have a life insurance policy, the court may order that a percentage of the available death benefits should be allocated to your former spouse. In doing so, the court may also divide responsibility for making the premium payments.

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spousal maintenance, Kane County divorce attorneysWhen you are going through a divorce, there are a number of important considerations to be made. You, your spouse, or both will probably have to find a new place to live. If you are a parent, you will need to develop a parental plan and a strategy for allocating parental responsibilities and parenting time. Of course, simply adjusting to life without your spouse can be a challenge all its own. However, some of the sensitive concerns in divorce revolve around finances and assets: how will the marital estate be divided and are you entitled to receive spousal maintenance payments?

According to the Illinois Marriage and Dissolution of Marriage Act, decisions regarding property and support in a divorce must be made on a case-by-case basis. If you and your spouse cannot reach a negotiated agreement, the court will identify and allocate your marital assets between you and determine if spousal maintenance is needed. In doing so, the court must take into account a number of factors regarding each. These factors include, but are not limited to:

  • The income, resources, and earning capacity of each spouse;
  • Each spouse’s role in marriage, how it contributed to the marital estate, and the impact on either spouse’s earning potential;
  • Length of the marriage and the lifestyle established;
  • How the allocated property or maintenance will affect tax liabilities;
  • Arrangements made for the couple’s children; and
  • The existence of any prenuptial or postnuptial agreement between the parties.

Each Can Affect the Other

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Posted on in Alimony

spousal maintenance, Kane County divorce lawyersDepending upon the circumstances surrounding your marriage and divorce, you may feel that you should be entitled to spousal maintenance payments from your ex-spouse. Unlike child support, spousal support is not presumed to be appropriate in every situation. Instead, Illinois law requires each case to be weighed on its own merits to determine if the need for such supports actually exists. This means that, if you think may be entitled to recieve maintenance, you will need to explicitly request that relief from the court.

Marital Conduct Not a Factor

Unless you and your spouse included behavior clauses in a prenuptial or postnuptial agreement, the court will not consider the conduct of either party when deciding whether to award maintenance. While your spouse’s behavior may leave you feeling like he or she owes you some type of restitution, the law in Illinois specifically prohibits marital misconduct from being a factor in maintenance proceedings. Spousal support is meant to help you meet your financial needs and obligations, and is not intended to be used as a punitive measure against your spouse.

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spousal maintenance, alimony, St. Charles divorce lawyersWhen a marriage comes to an end, both spouses often find themselves in challenging financial situations. In many cases, however, one spouse is frequently more economically disadvantaged, having relied the other spouse’s income throughout much of the marriage. Spousal maintenance, sometimes known as alimony, may provide some measure of relief to a person in such a situation, and the state of Illinois has rather specific guidelines that family courts are expected to follow in awarding support. Is Maintenance Needed? The first step in the process, according the Illinois Marriage and Dissolution of Marriage Act, is determining whether a spousal maintenance award is truly necessary. To do so, and assuming there is not a valid agreement between the divorcing parties, the court will take a close look at the circumstances of the marriage and divorce. Factors including the health, occupation, and income of each spouse, along with each party’s contribution to the other’s earning capacity, arrangements made for the children, the length of the marriage, and many others must be considered in making the decision. If the court finds that support is appropriate, it must then calculate the amount to be paid and the intended length of the award. Amount of a Spousal Maintenance Award For couples with a combined income of more than $250,000 and those with specific complicating factors, the court has full discretion over the length and amount of spousal support. Otherwise, the court is expected to use the formulas provided by the statute. The amount of maintenance to be paid, according to the law, should be 30 percent of the payor’s gross income minus 20 percent of the payee’s gross income. The maintenance amount, however, added to the payee’s income may not exceed 40 percent of the couple’s combined income. Duration of a Spousal Maintenance Award To determine how long the order will remain in force, the law provides a sliding percentage scale based on the length of the marriage. Longer marriages result in relatively longer maintenance orders.  The length of the marriage is multiplied by the appropriate percentage factor to establish the duration. Percentages are set by the statute as:
  • 20 percent for marriages of up to 5 years;
  • 40 percent for marriages of 5 to 10 years;
  • 60 percent for marriages of 10 to 15 years;
  • 80 percent for marriages of 15 to 20 years; and
  • Permanent maintenance or equal to the length of the marriage for marriages of 20 years or more.
Illustrative Example Husband, making $100,000 per year, and Wife, making $50,000 are getting divorced after ten years of marriage and maintenance was found to be appropriate. The calculations would be as follows:

30 percent of the payor's income:     $100,000 x 30% =  $30,000   minus

20 percent of the payee's income:     $50,000 x 20% =  $10,000

equals:                                                                                   $20,000,   however,

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