A question that often arises during divorces is, “Are spousal support payments mandatory?” Courts in Oakbrook Terrace and the rest of Illinois may award it in some cases, such as when one spouse significantly out earns the other. A spouse must request alimony first, however. The spouses can negotiate the matter between themselves or have the court decide alimony issues based on each spouse’s earning capacity, health, age, financial resources, and other factors.
Could spousal support apply in your divorce? Call Erlich Law at (630) 538-5331 for a consultation.
Spousal Support Laws in Illinois
Courts do not grant spousal support automatically in divorces, but the Illinois Marriage and Dissolution of Marriage Act outlines how spousal maintenance can work. Overall, courts strive for equitable spousal support decisions that reflect the marriage’s dynamics.
When Courts Decide Alimony Amount and Duration
First, one spouse must request alimony. After this, courts determine if it is appropriate. If it is, courts then consider the amount and duration, often using state guidelines. Courts do have the authority to deviate from these guidelines, especially in situations involving high incomes or large amounts of financial resources. When deviation occurs, the judge must still figure out what the maintenance would have been under guidelines, explain the deviation in writing, and set out the non-guideline spousal support award.
The guidelines generally call for the yearly alimony one spouse pays to follow this formula: 33% of payor’s net income – 25% of recipient’s net income. One important caveat applies, saying that the recipient’s total income, including spousal support, should not exceed 40% of both spouses’ combined net income.
The length of the marriage factors into the guidelines, as well. For example, the duration of alimony is at 0.20 the length of the marriage for marriages of less than five years when divorce paperwork was filed. Alimony’s duration would be 0.44 the length of the marriage for marriages of between 10 and 11 years, and 0.68 for marriages of between 16 and 17 years.
For marriages of 20 years or more, the court could order alimony to last for as many years as the marriage lasted or for an indefinite period. This indefinite period, at a minimum, typically lasts until the payor spouse reaches retirement. In Illinois, about 17.6% of the population is 65 or older. Being in this age group for the first time can greatly affect alimony considerations that have not changed for years.
When Spouses Decide Alimony
The spouses can decide alimony between themselves and have the court approve their agreement. As long as the deal appears equitable and reasonable, a judge should OK it. The spouses do not have to follow state formulas, but they can, or use the guidelines as a starting point to help with discussions.
Figuring out alimony between themselves allows spouses to customize a solution that fits their situation. They have more flexibility than a judge does and more knowledge of the dynamics of their situation.
When the Spouses Have Prenuptial or Postnuptial Agreements Addressing Alimony
Prenuptial or postnuptial agreements generally come first when deciding alimony, although it is possible to challenge them successfully. If an agreement massively is unfair to one spouse, a judge might decide not to enforce it.
Meanwhile, one spouse lying about assets, income, or other financial information for the prenup or postnup may have committed fraud. This could invalidate the agreement. An Illinois spousal support lawyer can help with how to uncover hidden assets in a divorce or with figuring out whether a spouse lied about hidden assets for a prenup or postnup.
Pressuring or threatening one spouse to sign is another reason for prenup or postnup invalidation, as is improper execution. An agreement must be in writing and signed properly. A major change in a spouse’s circumstances might be grounds for the terms of an agreement to change, too, for example, if the payor spouse became disabled and lost his or her source of income.
Assuming valid, enforceable agreements, though, these agreements usually are what will control when it comes to alimony decisions.
When Are Spousal Support Payments Required in Illinois?
Spousal support in Oakbrook Terrace may not be required if the spouses are financially similar. It may be required if one spouse shows the need for it and the other is capable of paying. When deciding whether alimony is needed and whether it would be fair, courts review considerations such as:
- Each spouse’s income, property, and financial resources
- Each spouse’s financial needs and capability to maintain the standard of living enjoyed during the marriage
- Each spouse’s present and future earning potential
- If the spouse requesting alimony needs education or training to become more financially independent
- The length of the marriage
- Both spouses’ age and health
The courts also pay attention to contributions one spouse made to the other’s education or career. For example, one spouse may have put the other through graduate school or medical school.
Contributions the spouses made to the marriage get much scrutiny, too. One spouse might earn much less than the other because the spouses jointly agreed that one would leave the workforce to focus on child-rearing.
When Alimony Payments Might Stop in Oakbrook Terrace, IL
Is spousal support mandatory? It is, once the court orders it. However, there can be grounds for terminating or modifying Illinois spousal support. The recipient cohabitating with a new romantic partner may mean alimony can stop. Remarrying should be grounds for termination, too. Either party’s death constitutes grounds for termination, as well.
However, get clarification before you stop paying, with one suggestion being to speak with a spousal support attorney. You could end up in trouble if you stop paying out of the blue, especially if the grounds for termination do not exist.
When courts order alimony, especially fixed-term, they often do so with an end date noted in the court order. Unless new court action related to the issue occurs in the meantime, payments should stop on the date outlined. When courts order permanent maintenance, factors such as cohabitation or remarriage can lead one spouse to ask the court to terminate the payments.
How an Illinois Family Lawyer Can Help with Spousal Support Issues
A family lawyer in Illinois can help in many ways with spousal support issues. One is uncovering hidden assets.
Hidden Assets
One spouse may try to hide assets or understate assets’ value to pay less alimony. An attorney can work with financial professionals to examine tax returns, bank accounts, investment accounts, business records, and other paperwork to sniff out hidden or undisclosed income sources. Subpoenas, depositions, and interrogatories may be necessary in some cases.
Modifications or Terminations
A major change in circumstances such as job loss or disability can lead to one spouse having a greater need for alimony, even years after a divorce, or one spouse having less of an ability to pay it. Conversely, if one spouse suddenly experiences an improvement in financial circumstances, such as a large inheritance, the need for alimony may be less or nonexistent. An Illinois spousal support lawyer can help you make a court case for modifications or terminations, whether you are the payor or recipient.
Enforcement
Spousal support in Illinois divorce may be mandatory, per court order or final divorce decree, but that does not mean payments actually occur. A lawyer can help with going to court for alimony enforcement. It could take the form of wage garnishment or tax return interceptions, among other things.
Clarity and Answers
When people consider divorce, there can be a lot of uncertainty about issues such as alimony. Meeting with a lawyer who can explain what you should know about alimony in your case can offer clarity and peace of mind. Lawyers examine the nuances of your situation to determine if courts would order you to pay spousal support or whether you might receive it, for how much, and for how long.
Spousal support lawyers also keep the big picture in mind when considering alimony. For instance, you may have child support, asset division, and parental relocation issues to consider as well. Each can affect others in multiple ways, and there can be multiple creative ways to tailor solutions to your circumstances. Existing spousal support and child support obligations from previous marriages are other possible variables to consider, since they usually decrease a spouse’s ability to pay alimony.
Negotiation
Court battles sometimes are necessary, but spouses who can avoid them may save on a lot of stress and expense. Family lawyers can help with alimony agreements through mediation or negotiation that eliminates the need for long court disputes.Get answers to your questions about spousal support. Contact us at Erlich Law today.
