Spousal Maintenance
Koth Gregory & Nieminski Law Firm – 420 North Main Street – Bloomington IL – Call 309-828-5090
Maintenance (Alimony)
Formerly referred to as alimony, maintenance is simply support that is payable from one spouse to the other spouse in a divorce. If a spouse seeks maintenance, the courts must initially determine if awarding it is appropriate. This involves considering factors such as:
- Each parties’ property and the income, which includes marital and non-marital properties assigned to the spouse seeking maintenance. In addition, any financial obligations that are imposed upon the parties as a consequence of terminating the marriage.
- Each party’s needs and realistic earning capacities.
- Any impairments to the earning capacity of the party that seeks maintenance on account of dedicating time toward domestic responsibilities.
Or, due to forgoing or delaying education, employment opportunities or training due to the marriage. Likewise, any type of impairment to the earning capacities of the party against whom spousal maintenance is sought.
- The amount of time necessary for the party requesting maintenance to complete relevant education and employment. Also, whether the party is capable of self-support through appropriate forms of employment.
- The effects of any parenting schedule arrangements upon a party’s capacity to seek or retain employment.
- Duration of the marriage and the standard of living that was established.
- Each spouses’ needs, occupation, income amounts and sources, age, vocational skills, liabilities, employability and estate.
- All private and public sources of income, which includes retirement and disability income without limitations.
- Tax consequences of each party.
- -Services and contributions the party who seeks maintenance to the career, training or licenses of the other spouse.
- Any valid agreements between the parties.
- -Other factors the court may view to be equitable and just.
If the court determines it’s appropriate to award maintenance, it may be in the form of either guideline or non-guideline maintenance. The guideline category of maintenance considers the amount of each parties’ earnings and the duration of the marriage. Then, the court applies a formula to calculate the amount maintenance and how long it shall be paid. The court may deviate away from that formula and decide to the non-guideline type of maintenance. However, there must be a reason for doing so. (For example, the combined income of the parties’ gross yearly income is greater than $500,000.) At Koth Gregory & Nieminski, our experienced family law attorneys use leading software to calculate spousal maintenance in a very cost-effective manner.
The software enables us to give you accurate results at less cost by significantly lowering the risk of error. Additionally, it eliminates unnecessary time spent on doing manual calculations for you and your spouse’s financial information. Without a doubt, this is just one of the multiple advantages to using a law firm with family law and divorce attorneys that utilize the best technologies.
In cases that involve maintenance issues, the court enters a specific order that includes:
- The court’s basis for either awarding or to not award maintenance. The reasons must include specific references to relevant factors.
- If the court chooses to deviate from guidelines, it has to state the amount of the maintenance or duration which would’ve been mandated by the guidelines and the basis for any deviating from the guidelines.
- The court must state if the maintenance is indefinite, reviewable, for a fixed-term or reserved by the court.
In the event that you believe you’ll require maintenance in order to support yourself while your divorce proceeds, your lawyer can file what’s known as a petition for temporary relief.
According to the Temporary Relief section that is within the state’s Marriage and Dissolution of Marriage Act, requests for temporary payment of child support or maintenance must also be accompanied by an affidavit of financial affairs. The affidavit must detail the basis for seeking the relief. The Illinois Supreme Court applies a single financial affidavit form for each party to complete.
Modification of Orders and Parenting Plans
It’s possible to modify prior judgments or court orders by filing a petition with the court. This applies to issues such as spousal support, child support or allocating parental responsibilities. It’s important to note that time is a factor for some modifications. We can review those issues with you. If there are abrupt changes in your case, do not hesitate to contact us right away. Our divorce lawyers can promptly petition the court for modifications to the existing judgment.
Parenting Schedules and Arrangements
As time goes on it’s not surprising that the needs and circumstances of children and their families go through changes. For instance, parents may relocate to a new city, change spouses or switch jobs. Children grow older, develop new interests and may become closer to one of the parents and less so with the other. In some cases, one or each of the parents may not follow the parenting plan. Perhaps the plan that was best for the interests of the children in the past becomes ineffective, making it necessary to make modifications.
The parenting plan is what details the time each parent spends with their children as well as which parent is responsible to make important significant impacting them. Illinois state law permits courts to make modifications to parenting time upon a demonstration of new circumstances that require changes to serve the children’s best interests. Unless both parties are in agreement or there is an endangerment to mental, physical or moral health of the children, a modification to a parent’s decision-making obligations cannot be enacted sooner than two years after the date of the order. The court may, however, allow modifications to a parenting plan without a demonstration of a change to circumstances if doing so in the child’s best interests:
- The modification is a reflection of the arrangement to which the children have received care, without objection from a parent, for the six months before the filing the petition for the modifications. (Providing the arrangement isn’t the result of a parent’s agreement resulting from a circumstance that negates his or her ability to give consent.
- The modification is a minor change to the parenting plan.
- Modifications are necessary to the parenting plan because the court wouldn’t have initially approved it if aware of the specific circumstances at that time.
- The parties are both in agreement to the modification.
When the parties can come to an agreement, the courts still must approve the modifications to the parenting plan for it to be legal and enforceable. On the other hand, in the event the parties are not able to come to an agreement, the court in many cases will require them to attend mediation to resolve their differences. If mediation is not successful, the court can appoint what’s known as a guardian ad litem (GAL). A lawyer, the guardian ad litem represents the best interests of children. The guardian’s task is to investigate the facts and eventually recommend to the court what will be in the children’s interests in terms of parenting time and the responsibility to make significant decisions. The guardian basically represents the court because, naturally, the court simply is not able due to the time involved to personally evaluate all the facts of each case. The GAL’s opinions can have a big impact on the results of your case. Even though the court is not necessarily required to comply with the GAL’s recommendations, they in most cases carry a lot of weight.
Modifications to Child Support
You can petition the court to obtain changes to child support. The amount of support that’s owed will only change, though, if the judge decides to enter a new court order to do so. Either of the parents can choose to file a motion that asks the judge to change the amount of the child support payments in the event that circumstances have changed significantly since the previous order for support. (Or, if there are specific factors involved, there may be no need to show circumstances are substantially different.)
Some of the grounds common cited as the basis for making modifications to child support include:
- A change in the needs of the children.
- Changes to the financial circumstances of the parents, such as their employment status.
- Changes to parenting time.
Modifying or Terminating Maintenance (Alimony)
Terminating maintenance in the state of Illinois. State courts will end maintenance payments if the spouse who is receiving them dies, remarries or lives (cohabitates) with another person. For cohabitation, spousal maintenance only terminates if the person receiving it starts living with another person in a conjugal, ongoing relationship. Residing with a person of the opposite gender in a platonic, roommate arrangement is not sufficient to terminate the maintenance payments. To do so, the party looking to stop maintenance has to file a motion with the court. After proving that a relevant situation exists, the court has to order termination of payments according to the date of the event. Payments provided after that terminating event have to be repaid.
Modifying maintenance in the state of Illinois. Courts have the discretion to make modifications to maintenance orders if there is a major change in circumstances following the entry of the initial order. For modifications to occur, the party who seeks them must file a motion with the court. Then, court shall consider certain factors in order to decide if circumstances have changed substantially to justify modifications to the maintenance order. Examples of these factors include:
- Changes to either parent’s employment status as long as they are in good faith. (A parent cannot quit a job for the sole purpose of modifying maintenance payments.)
- The party receiving maintenance makes efforts toward self-supporting financial status. Those who receive maintenance must make a reasonable effort to attain this. If the party paying the maintenance is able to show that the recipient isn’t making an effort, a reduction in maintenance could occur.
- Any type of impairment of the existing or potential earning capacity of the maintenance payer or the maintenance recipient.
- The consequences of taxes for the payments upon the economic situation of either party.
- The duration of the payments already paid and those remaining relative to the duration of the marriage.
- Properties, such as retirement benefits, that were awarded as part of the divorce and the current status of those properties. In some cases, awarding property in a divorce proceeding to the maintenance recipient is utilized to reduce the maintenance amount he or she shall receive.
- A change in the income of each party since the previous order or judgment.
- Property that each party acquired and still owns following the divorce.
- Other factors the court determines to be equitable.
Enforcing Child Support or Maintenance
The failure to comply with an order to pay child support or maintenance can obviously result in financial challenges for the party who is to receive them. If your ex-spouse is able to pay child support or maintenance but does not comply with a court order to do so, it may be necessary to file a contempt action. The court possesses various ways to enforce court-ordered child support or maintenance payments.
If there’s a problem finding the location of your former spouse, you can have confidence in the knowledge that our family law attorneys are experienced in collections. We are well-equipped with the best people-finding tools and techniques to track down your ex and obtain payments.
If it’s been a significant length of time since your former spouse made any payments, your lawyer may request a judgment from the court to cover the amount past due. After obtaining a judgment, there are many methods of collection available including wage garnishment, a vehicle levy, placing a lien on real estate or freezing bank accounts. Judges in some cases might even decide that incarceration is an appropriate enforcement.
If you’re the parent who is paying maintenance or child support to a former spouse but are not able to make payments due to your financial circumstances, do not delay to seek the help of our law firm. A divorce lawyer at KGN can work with you in order to establish a child support or maintenance payment that is more manageable. By modifying the current court order, you’ll be less at risk of falling behind on payments in the future.
Call our offices at 309-828-5090 to schedule a consultation.
