ARTICLES

Maintenance Basics

Categories of Maintenance: Notwithstanding the evolution of Illinois law, even today perhaps the most important thing to understand about the financial side of a divorce case is how your particular judge looks at the interplay between the property distribution and maintenance awards. If there is enough property for each spouse to realize financial security, maintenance may not even be considered by many judges. On the other hand, many, many cases stand for the proposition that although the distribution of marital property is the primary source of support for a financially dependent spouse, he or she should not be required to liquidate assets to provide for his or her support.¹

Maintenance awards may last a lifetime – or only a few months.² They come in three varieties: "permanent," "in gross," and "rehabilitative."

Permanent Maintenance: is exactly as it sounds: maintenance payments continue until one of the former spouses dies (or the occurrence of one of the terminating triggers defined in the law) – unless, of course, the court later agrees to modify or terminate them based on a change in circumstances not foreseen at the time of the divorce. This type of maintenance, however, is still subject to the terminating events defined in the law.³ In fact, the trial court can make a “permanent” award of maintenance, but define termination events other than those imposed by the law. For example: “wife shall receive permanent maintenance until the husband retires (at his discretion), at which time maintenance shall terminate.”⁴

Permanent maintenance is more appropriate when the receiving spouse is not employable or is employable only at a low income when compared to the standard of living enjoyed during the marriage,⁵ or when the receiving spouse is disabled to the point where he or she is unable to work.⁶ Practically speaking, permanent maintenance awards are most commonly made to women in long term⁷ marriages who have little or no formal education, have spent years as a homemaker rearing children and supporting the family and have forgone career opportunities in favor of a husband who was pursuing his own education or establishing himself in his career.⁸ Recipients of permanent maintenance awards are usually in at least their 40’s or 50’s and of imperfect health.⁹

If you're thinking of seeking, or defending against, an award of permanent maintenance, contact one of our knowledgeable attorneys to discuss your case. It is not as easy as just asking the judge and seeing what happens. The party seeking permanent maintenance bears the burden of proving to the court that such an award is necessary.¹⁰ Where, for example, a spouse seeks permanent maintenance due to health restrictions that will prevent substantial income-producing employment, failure to present evidence of the permanency of the health condition will torpedo the claim for permanent maintenance.¹¹

Consult an attorney if you're considering using an award of permanent maintenance as part of the settlement of your case. The yardstick by which incomes are measured can vary from case to case. In one recent case, for example, a wife who earned $37,000 per year was found to be "employable only at a low income" and was awarded permanent (lifetime) maintenance of $600 per month.¹²

Maintenance in Gross: means lump sum: one huge payment on (or near) the date of the divorce or in a specified number of periodic installments. Maintenance in gross is tantamount to a property settlement, but may be used by some divorcing couples to maximize certain tax advantages. Maintenance in gross is sometimes taxable and sometimes tax-free to the recipient. Two critical factors to consider are the definition of the termination events¹³ and the fact that the amount should not be modified.¹⁴

Maintenance in gross is sometimes (incorrectly) called "transitional maintenance"¹⁵ and operates like the pre-1993 form of maintenance. The receiving spouse should get enough time and resources to become financially self-sufficient. Transitional maintenance awards last for only a set amount of time – typically one to five years. Once that time lapses, the maintenance terminates automatically. There is a way, however, that a maintenance award that is supposed to terminate can be continued – just like "rehabilitative maintenance."¹⁶

Rehabilitative Maintenance: Also called "periodic maintenance" or "reviewable maintenance," rehabilitative maintenance may be for a specified period of time (usually six months to five years) or for an indefinite period. The concept behind rehabilitative maintenance is to afford a spouse the little extra time and resources he or she may need to become financially self-sufficient.¹⁷ The objective is to help the recipient spouse obtain future employment that will provide for an approximately similar standard of living as attained in the marriage.¹⁸

Some cases call for an award rehabilitative maintenance for a fixed period of time. This gives the recipient spouse an incentive to diligently endeavor to become financially independent.¹⁹ Generally speaking, where the recipient spouse has a college degree, had a career, and only needs a little time to get back into the job market, rehabilitative maintenance for a fixed period is usually awarded.²⁰

Where, however, there is significant uncertainty about the recipient's spouse's ability to become self-supporting, maintenance is more likely to be awarded for an indefinite time²¹ – usually called "reviewable maintenance." When awarded for an indefinite period, the court usually establishes a review date to reconsider the situation to determine whether maintenance should continue. A better practice – used only occasionally – might be to set maintenance for a specific period and require the recipient to request an extension, if necessary.²² Such awards stress the importance of the recipient's duty to rehabilitate and impose a burden of proof on the recipient to demonstrate why the rehabilitation failed and why maintenance should continue. Still, "reviewable" awards are much more common than awards for a specific time with a right to seek an extension.

Typical reviewable awards might be for two or three years, during which time the recipient spouse has a duty to try to become financially self-supporting. Near the end of that period, the court decides if the recipient is financially self-sufficient. If so, the rehabilitation is complete and maintenance terminates. If not, maintenance may continue but only according to the duration and restrictions set by the court. It is not uncommon in such a situation for the court to grant a relatively short (i.e., up to one-year) extension at a reduced monthly amount, and to make that extension non-reviewable with no further chance of renewal. If, however, the court concludes that the recipient spouse has not made a good faith effort at self-sufficiency, maintenance should immediately be terminated.

Beginning in the 1990s, a trend began to develop in Illinois under which an unemployed or underemployed spouse seemed more likely to receive an award of permanent maintenance as opposed to rehabilitative maintenance.²³

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