ARTICLES

Changing Maintenance Payments

Illinois law permits a maintenance award to be modified in certain circumstances.¹ If a modification is permitted, the law sets out specific factors that the court should consider in determining the new maintenance award² – if any. Sometimes parties will agree to review maintenance after a set number of months. Be sure to work closely with a knowledgeable attorney to avoid disaster. Consider the case of a couple who divorced, agreed that the husband would pay the wife $100 per week in maintenance and then review the award ten months later.³ On review, the court awarded the wife $1,400 per month – that's right, from about $420 to $1,400. The husband thought it was too much, and the wife was troubled by the fact that she hadn't been receiving it all along. A good divorce lawyer writing a better agreement could have avoided the problem altogether.

Modifying Maintenance Upon Retirement: Folks are living a lot longer these days and many are working later into their senior years. On the other hand, many employers seek to stay competitive by getting older, more expensive workers off the payroll in favor of younger or foreign workers by offering early retirement plans. Illinois law doesn’t deal with how early retirement affects existing maintenance awards. Courts in Florida⁴ and California⁵ have directly dealt with the impact of retirement on maintenance – they use the “65-and-out-rule” meaning that no one should be expected to pay maintenance after the age of 65 -- but Illinois courts have been slow to articulate a rule by which divorced spouses can definitively plan for their retirements. So, what happens when an obligor paying maintenance retires and experiences the resulting decrease in income?

The best thing to do, of course, is work with a skilled and capable attorney to ensure that your Marital Settlement Agreement or divorce Judgment will address what will happen to any maintenance obligation if you or your former spouse decide to work beyond normal retirement age or, alternatively, elect to exercise and early retirement or buyout package.

The general rule in Illinois is that a reduction in the maintenance obligation is not warranted when the payor encounters a voluntary reduction in income. Voluntary retirement, however, can sometimes be considered a special situation. There are several cases that stand for the proposition that a spouse paying maintenance may deserve a reduction or termination of the obligation upon retirement. Although the Illinois courts have not officially endorsed the “65-and-out-rule,” there is hope of reducing a maintenance obligation upon retirement. Maintenance termination upon retirement is possible when the court considers a variety of factors including the payor’s age, health, motives, timing, ability to pay after retirement, and the recipient spouse’s financial position.⁶ If you’re facing retirement and need to relieve yourself of, or secure, a maintenance obligation, call one of our knowledgeable attorneys to learn your options and your exposure.

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