Because Illinois recognizes that family circumstances can change following the issuance of spousal support orders, the law allows spousal support to be modified or terminated if one of multiple grounds exists. In order to secure a modification of the maintenance amount or a termination of the payments, the party seeking the change or termination must file a motion with the court that issued the order. The payments must continue as they are currently ordered until and unless the court grants the motion to terminate or modify the support payments. A family law attorney might help with drafting the motion and litigating the matter in a hearing before the court on his or her client’s behalf.
The grounds for the automatic termination of maintenance in Illinois under Illinois 750 ILCS 5/510 include the following:
- The death of either party
Any maintenance payments that are made after one of these events occurs must be paid back to the payor by the payee.
Illinois is one of a few states that end maintenance payments when a recipient cohabits with a new partner. Cohabitation involves living with another person in a conjugal relationship and does not include simply having a roommate. The party seeking the termination of support based on cohabitation will have the burden of proving to the court that the recipient is cohabitating with a new partner. A family law attorney may submit evidence about long the relationship has lasted, the activities the pair engages in together, whether they have vacationed together, how much time they spend with each other, whether they celebrate holidays together and how interrelated their affairs are with each other, which are all factors judges consider.
The law requires that a recipient spouse who plans to remarry should notify his or her former spouse who is paying spousal maintenance 30 days prior to remarrying. This is to allow the former spouse sufficient time to file his or her motion to terminate spousal maintenance on the basis of remarriage. If the recipient decides to marry without planning to do so in advance, the law states that he or she must notify his or her former spouse within 72 hours of getting married.
Death Of Either Spouse
The death of either spouse terminates maintenance. The estate of a deceased person does not have to continue paying maintenance, and the heirs of a recipient spouse have no intestate rights to continue receiving the payments.
Family Law Attorney: Permissive Grounds For Changes
Even if one of the automatic grounds for terminating maintenance does not exist, maintenance may be terminated or modified based on a substantial change in the financial circumstances of either party. In determining whether or not to modify or terminate the maintenance payments, the court will consider several factors.
Changes In Employment Status
The court will consider any changes in the employment statuses of either party that resulted in the substantial change in circumstances. These changes must have been made in good faith.
Efforts To Become Self-Sufficient
Recipients are required to make reasonable efforts to become self-supporting. If the moving party is able to show that no efforts were made or that the efforts that were made were unreasonable, the court may modify or terminate the maintenance payments.
Impairments Of The Ability To Earn Money
Courts may consider any existing impairments of a person’s ability to earn an income when considering a motion to modify or terminate maintenance. This might include a disabling condition suffered by either party since the original order was issued.
Duration Of The Previously Paid Payments
Courts will consider how long in relation to the prior marriage the payor has been making maintenance payments when they consider whether or not to grant motions to modify or terminate the support.
Tax Consequences Of The Maintenance Payments
Judges also consider the tax consequences of the maintenance payments on the financial circumstances of both parties. Generally, maintenance payments are deductible expenses for payors and must be reported as income by recipients.
The Increase Or Decrease Of Income
Judges will consider how much the incomes of both parties has increased or decreased since the order was issued when determining whether to grant a motion to modify or terminate support.
Property Each Received
The court will consider the property and retirement benefits each party received in its consideration of a motion to modify or terminate support.
Property Each Has Acquired
Finally, judges consider the property each spouse has acquired since the divorce and original order.
Maintenance orders are made in order to help a lower-earning or non-earning spouse support while he or she becomes self-sufficient. A family law attorney may represent either a person seeking to modify or terminate alimony or a person who is defending against such a motion.