ARTICLES

History of Maintenance and Alimony

Illinois law does not recognize the term "alimony" anymore – that term was abolished when the law was changed – instead, we now call it "maintenance." A rose by any other name... . Maintenance is an amount of money determined by the court (or by agreement between the divorcing spouses) to be paid from one spouse to another upon the dissolution of their marriage.

Long ago in Illinois, husbands had little choice but to pay permanent maintenance in nearly every divorce. That is because prior to 1977, Illinois law required courts to allocate property in a divorce to its registered owner. That meant that houses that were held in “joint tenancy” would be divided 50 /50; but business and investment interests and most other sizeable assets (like cars and bank accounts), which were almost always held in the husband’s name alone, had to be given to him — and the court could not award any part of those assets to the wife. As a result, divorcing husbands made a financial killing and most divorcing wives were left nearly destitute. To alleviate their plight, of course, courts routinely granted divorcing wives generous maintenance (alimony) awards.

In 1977 – as part of the tidal force of “women’s liberation” — Illinois enacted a major overhaul of family law. The new law changed the way the court looked at assets in divorce cases: instead of allocating an asset to its registered owner, the asset was considered to belong to the marriage – regardless of how title was held – so long as the asset was acquired during the marriage. Thus, a wife could be awarded a fair share of a husband’s business interests or investments. This change did not occur in a vacuum, however, and it brought with it a change in the way courts looked at maintenance. After 1977, judges sought to divorce the parties financially – and with finality – whenever possible. Awards of maintenance were permitted only where a marriage had insufficient assets to liberate an otherwise financially dependent spouse. The idea was to provide a dependent spouse with enough to allow her to get back on her feet and to financially burden her former husband as little as possible. In other words, a financially dependent spouse might receive a grossly disproportionate share of the property, but no maintenance or only a small award for only a short duration. Women who had been housewives for twenty years suddenly found themselves having only a few years (if that) to become trained, employed, and financially independent. In many cases, that meant that the assets awarded in the divorce were soon liquidated to support the dependent spouse and, once exhausted, the spouse was destitute anyway.

In 1993, the law was changed again. Today, the law¹ reflects a more enlightened view of how men and women work as financial partners in a marriage and the realities of the American workforce (although women hold about half the jobs in Illinois, they are paid about $0.77 for every dollar earned by a man – in the exact same job doing the exact same work). The law also allows for much broader considerations in making property divisions and maintenance awards and the basic idea is fairness. Today, a dependent spouse may receive a substantial property award and an additional award of maintenance.

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