In Illinois, alimony is officially referred to as spousal support or spousal maintenance. It is governed by the Illinois Marriage and Dissolution of Marriage Act.
The alimony laws changed significantly in 2019, and formulas were applied to all divorces filed in 2019 going forward.
Here are the key things about alimony in Illinois that you need to know.
- Types of Spousal Maintenance in Illinois
- Factors That Determine Spousal Support Amounts
- Duration of Payments
- Modifying a Support Order
- Options When Non-Payment is an Issue
- Does Child Support Affect Spousal Maintenance?
- Does Asset Division Affect Maintenance?
- Spousal Maintenance and Taxes
Types of Spousal Maintenance in Illinois
If both spouses are self-supporting, the court may deny the support request, even if there is a large discrepancy in income. The court’s goal in awarding support is for each spouse to maintain the standard of living after the divorce.
Illinois courts can deal with any significant difference in earnings by distributing more of the marital property (like bank accounts, mutual funds, and any tangible assets) to the lower-earning spouse.
Illinois law permits a spouse to request Temporary Support while a divorce case is pending. The goal of temporary maintenance is to aid the supported spouse in maintaining their financial status quo during the divorce process.
Fixed-Term support is usually awarded to allow the other spouse to become self-supporting, such as completing education or job training. Fixed-term support is awarded for a set duration. The court expects the party receiving maintenance to make good faith efforts to become employed and self-supporting.
Reviewable Support is subject to periodic court review with the recipient showing their efforts to become self-supporting.
Permanent Support is sometimes ordered in situations when spouses are unable to support themselves due to illness, age, or other factors and is typically reserved for long-term marriages. The marriage must have lasted at least 20 years to be eligible for permanent maintenance.
Only married couples can request maintenance. If you break up with your live-in boyfriend or girlfriend, that does not qualify you for support. The concept of “palimony” isn’t recognized in Illinois.
Factors That Determine Spousal Support Amounts
The basic formula for alimony in Illinois is straightforward.
(33% of the payer’s net income) – (25% of the recipient’s net income) = the yearly maintenance paid.
One condition is that the support obligation amount awarded cannot cause the receiving spouse to earn more than 40% of the couple’s combined net income.
It’s essential to note that spousal maintenance is not awarded in all divorces. Courts consider several factors to determine if it should be awarded. Those factors include:
- Each spouse’s income and property, with consideration of the division of marital assets
- Each spouse’s financial need
- The present and future earning potential of both spouses
- Any negative impacts on the earning potential of the spouse seeking maintenance due to marriage or childcare arrangements
- Any potential impairment to the earning potential of the spouse paying maintenance
- The length of time needed for the spouse receiving maintenance to seek education or job training to improve their earning potential
- The standard of living established during the marriage
- How long the marriage lasted
- Other factors potentially related to employability, such as a spouse’s age or physical health
- Any other sources of public or private income
- Tax obligations created by the division of marital property
- Contributions one party may have made during domestic duties or to the education or earning potential of the other partner
- Any prenuptial agreements or postnuptial agreements
- Factors deemed by the court to be “just and equitable”
Spousal maintenance is gender-neutral, and either spouse can request financial support from the other. However, support is not automatic. The requesting spouse must demonstrate a need for financial assistance during and after the divorce.
Duration of Alimony Payments
In Illinois, the length of spousal maintenance payments largely depends on the length of the marriage. The state uses a formula for maintenance duration based on a period equal to a percentage of the years of the marriage as follows:
- Married less than 5 years: 0.20
- Married 5 years: 0.24
- Married 6 years: 0.28
- Married 7 years: 0.32
- Married 8 years: 0.36
- Married 9 years: 0.40
- Married 10 years: 0.44
- Married 11 years: 0.48
- Married 12 years: 0.52
- Married 13 years: 0.56
- Married 14 years: 0.60
- Married 15 years: 0.64
- Married 16 years: 0.68
- Married 17 years: 0.72
- Married 18 years: 0.76
- Married 19 years: 0.80
Married 20 years or more: Courts can order permanent spousal maintenance or maintenance for a length equal to the length of the marriage.
For example, if a couple was married 15 years, the length of spousal support payments would be 15 x .64, equaling 9.6 years. Judges have discretion when it comes to a monthly maintenance award, and the judge will decide the final amount and duration of any award during divorce proceedings.
These formulas apply as long as a couple’s combined annual income is less than $500,000, and the paying spouse is not already under any previous child support orders. In many cases, when these circumstances are present, the courts will still revert to the same formulas to determine support.
Payments are made monthly most of the time. To ensure payment takes place, courts often issue income withholding orders to the paying spouse’s employer. The employer holds back the funds, and payment is routed directly to the supported spouse.
In a few cases, support is made in a single lump-sum payment to eliminate messy monthly payments.
Modifying a Support Order
There are instances when you can change a support order. Either spouse can request a modification if it can be demonstrated that proper grounds exist.
According to Illinois divorce law, the following factors provide for automatic termination of spousal support:
- Cohabitation. The supported spouse is living with another person in a conjugal relationship.
- Remarriage. When the supported spouse remarries, the court will terminate the support order
- Death. Applicable when either spouse passes away.
There are also non-automatic circumstances that may lead to a modification.
- The court will modify or terminate spousal maintenance if the petitioning spouse can demonstrate that there has been a substantial change in particular circumstances since the court created the order. The requesting party can seek a change by introducing evidence of any of the following:
- a change in either spouse’s employment status
- lack of effort from the recipient spouse to become self-supporting
- either party’s impairment to earning income due to a disability, health crisis, or other acceptable reason
- the tax consequences of the maintenance payments upon the economic circumstances of the parties
- the duration of the support payments previously paid and remaining to be paid in relation to the length of the marriage
- the property, including retirement benefits, divided in the divorce
- an increase or decrease in either party’s income
- the property either party acquired after the court finalized the divorce, and
- any other factor the court finds to be just and equitable.
Options When Non-Payment is an Issue
If you’re receiving a monthly maintenance award and your ex-spouse does not pay as required, you or your divorce attorney can file a motion for enforcement. There are considerable penalties if the paying spouse does not abide by the court order of a valid agreement. Court actions include:
- require your ex-spouse to pay fines
- garnish wages or bank accounts
- extend the duration of support
- add interest to the total award
- intercept tax refunds
- jail time
It’s a good idea to seek legal advice to answer your divorce and alimony questions if this issue arises.
Does Child Support Affect Spousal Maintenance?
A child support obligation can affect spousal support. The amount of child and spousal support, when combined, cannot exceed 50% of the payor’s income, even when using the maintenance guidelines. In these situations, the courts have the discretion to change the formula for child support, spousal support, or both.
Read More: The Ultimate Guide to Child Support
Does Asset Division Affect Maintenance?
Yes. Courts can consider property division as part of the negotiations regarding support. Although formulas are often used, one spouse may prefer to give up a larger share of marital assets in exchange for less support or vice versa.
For example, one spouse may want to keep the marital home, and in the spirit of equitable distribution of property, that will influence how the courts decide on support.
Also, pensions and retirement accounts are considered marital property and subject to equitable distribution laws in Illinois. This is often the second-largest asset other than the family home, and it also frequently enters into support and division of asset discussions.
Read More: How to Find Hidden Assets in a Divorce
Spousal Maintenance and Taxes
Beginning January 1, 2019, as part of the Tax Cuts and Jobs Act, spousal support or separate maintenance payments are not deductible from the taxable income of the payer spouse or includable in the income of the receiving spouse if made under a divorce or separation agreement executed after December 31, 2018.
You can’t deduct alimony or separate maintenance payments made under a divorce or separation agreement executed before 2019 but later modified if the modification expressly states the repeal of the deduction for alimony payments applies to the modification. Alimony and separate maintenance payments under such an agreement are not included in your gross income for federal income tax purposes.
According to the IRS, a payment is alimony or separate maintenance if all the following requirements are met:
- The spouses don’t file a joint return with each other
- The payment is in cash (including checks or money orders)
- The payment is to or for a spouse or a former spouse made under a divorce or separation instrument
- The spouses aren’t members of the same household when the payment is made (This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance.)
- There’s no liability to make the payment (in cash or property) after the death of the recipient spouse
- The payment isn’t treated as child support or a property settlement.
If you paid amounts that are considered taxable alimony or separate maintenance, you might deduct from income the amount of alimony or separate maintenance you paid whether or not you itemize your deductions.
Not all payments under a divorce or separation instrument are alimony or separate maintenance. Alimony or separate maintenance doesn’t include:
- Child support
- Noncash property settlements, whether in a lump sum or installments
- Payments that are your spouse’s part of community property income
- Payments to keep up the payer’s property
- Use of the payer’s property
- Voluntary payments (that is, payments not required by a divorce or separation instrument).
Child support is never deductible and isn’t considered income. Additionally, if a divorce or separation instrument provides for alimony and child support, and the payer spouse pays less than the total required, the payments apply to child support first. Only the remaining amount is considered alimony.