Maintenance (Alimony)

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What is Maintenance (Spousal Support)?

Maintenance is also commonly known as alimony or spousal support.  Maintenance is support paid by one spouse to another financially dependent spouse.  The purpose of maintenance is to support a spouse that is financially dependent on the other spouse.  Maintenance can also be used to maintain the lifestyle the couple enjoyed during their marriage when the recipient spouse could not otherwise enjoy the same lifestyle.  Either spouse may request maintenance.

The Illinois Marriage and Dissolution of Marriage Act was updated in 2016 and now offers guidelines for determining the amount of maintenance that should be awarded and the duration of any award.

Maintenance can be awarded while a divorce is pending.  This is often called a temporary support order.  A request for temporary maintenance may be made as soon as a Petition for Dissolution (or Legal Separation) is served.  An award of temporary maintenance is valid until the divorce is finalized (or it is superseded by another court order).  The temporary support order may or may not be similar in amount to the maintenance order entered when the divorce is finalized.

Preference for Property Settlements

Generally, judges prefer to permit both parties to move forward with their lives and allow them to cut all ties. For this reason, many judges strongly prefer to award a disproportionately larger share of the marital property to the financially dependent spouse in place of maintenance or in addition to a smaller amount of maintenance.

Maintenance can be paid in one lump sum or in periodic monthly payments. The domestic relations judge may order the payor spouse to make payments directly to the payee spouse or to the State Disbursement Unit (SDU) who will in turn forward the payment on to the recipient spouse.

Modifying Maintenance (Spousal Support) Awards

Generally, either party can request a reduction or increase in the amount of maintenance if they can demonstrate a substantial change in circumstances. The key is that the change must be substantial. The unique circumstances of each case need to be analyzed.

Tax Considerations in Maintenance Awards

Unlike child support payments, maintenance payments are tax-deductible to the payor spouse and taxable to the recipient spouse. If the payor spouse is also making child support payments, then it may be advantageous to combine both the maintenance and child support payments together into what is known as unallocated spousal support. Unallocated support can yield favorable tax consequences for the payor spouse. Agreements for unallocated spousal support need to be carefully drafted to fully comply with the IRS rules and regulations that permit tax deductions for unallocated family support. A poorly drafted agreement can result in unintended tax liability for the payor spouse.

Enforcing Maintenance Awards

If a payor spouse fails to make a court-ordered payment of maintenance, the payee spouse can file a Petition for Rule to Show Cause with the family law court that entered the original maintenance award. If the payor spouse can show that the failure to pay was not willful, the court will generally not punish the spouse for contempt of court. However, where the failure to pay is deemed willful, the court can hold the paying spouse in contempt of court. The court may impose fines or order jail time in an effort to seek compliance with its order.
The Non-Support Punishment Act also grants the Illinois Attorney General the right to prosecute the non-payment of maintenance as a criminal offense. Willfully refusing to pay maintenance can be either a misdemeanor or a felony, depending on the facts.

Call Our Experienced Illinois Maintenance Lawyer

If you are looking for an experienced litigator in Oak Brook, Naperville, Wheaton, or Chicago, contact us today at (630) 464-6700 and request an alimony consultation.