STEP FOUR OF THE STRATEGIC DIVORCE PROCESS™: MAINTENANCE

I believe knowledge of the divorce process provides strength and peace of mind to those facing an often complicated and difficult time. This goal of education inspired me to write The Strategic Divorce Process™.

My book breaks divorce into five distinct steps when children are involved and two distinct steps when no children are involved. These steps are: 1. Making Decisions for Your Children; 2. Visitation; 3. Child Support; 4. Maintenance; and 5. Division of Marital Assets and Debts.

In this month’s column, we will examine a step that occurs in all divorces—maintenance. Sometimes called alimony or spousal support, maintenance is supplemental income paid from one spouse to the other after their divorce. Simply put, the purpose of this income is to allow both spouses to live the same lifestyle that they were accustomed to during their marriage.

Of course, this simplistic view isn’t entirely realistic. When two people divorce, even though their combined income will likely stay the same, their expenses often nearly double as there are two separate households with separate rent or mortgages, utility bills, and other costs.

When determining who will pay maintenance, the primary factor is income. The lower wage earner will always be the one to receive spousal support. Any and all reliable sources of money, not necessarily just employment, should be identified and used in the calculation. This can include regular family gifts, investments that have regular returns, perks from employment, or cash from side projects.

A common misconception about maintenance is that it is at the court’s discretion. While this was the case until 2016, courts must now use a statutory formula. Currently, annual maintenance paid equals 33 percent of the higher wager earner’s net income minus 25 percent of the lower wage earner’s net income.

There are some exceptions to this equation. First, the amount of money the lower wage earner receives cannot exceed more than 40 percent of the couple’s combined net income. If the amount does exceed it, 40 percent of the combined net income is used as a cap.

Additionally, should the couple’s combined gross income be in excess of $500,000 annually, any maintenance awarded on income in excess of $500,000 can be calculated differently, at the judge’s discretion.

For spouses who do not have their own income, such as a stay-at-home parent, an imputed income is often entered into the equation to represent their earning potential. This adjustment reduces the maintenance obligation for the higher earner.

While temporary maintenance may begin during the divorce, standard maintenance payments begin monthly once the divorce is completed but, in most cases, they do not go on indefinitely.

How long maintenance is paid is determined by a formula. In Illinois, maintenance lasts a percentage of the time the couple was married, with the percentage getting larger the longer the marriage lasted.

For example, if the couple was married for less than 5 years, the maintenance period is 20 percent of the length of the marriage. If the couple was married between 10 and 11 years, the maintenance period is 44 percent of the length of the marriage, and for couples married 15 to 16 years, the maintenance period is 64 percent of the length of the marriage. If the couple was married for more than 20 years, the court will order maintenance for a period of time that is either equal to the length of the marriage or indefinitely.

While the amount and length of maintenance is determined by a formula, a different structure can be negotiated. One spouse may agree to a higher amount of maintenance to be paid over less time, or one spouse may waive maintenance entirely for a larger share of the marital estate.

Generally speaking, maintenance, like child support, is fairly straightforward. The standard maintenance equation will drive the discussion, helping to avoid any contention or acrimony. If the parties prefer to bargain or negotiate, the division of the marital estate will be at the center of the negotiations.

Michone Riewer is an attorney with Strategic Divorce in Lake Bluff, 847-234-4445, strategicdivorce.com.