While many blog articles of late have dealt with the new child support statute in Illinois, the modification to the maintenance statute that went into effect on January 1, 2015, is still a topic that generates a lot of discussions. This is especially true now as many cases decided under the old law are now coming up for maintenance reviews or modifications. One of the critical questions we are asked is whether or not courts will apply the maintenance formula to cases decided prior to the new law going into effect.
It is important to first know that modifications and reviews of maintenance are controlled by a different statute than the one that originally establishes the right to maintenance. For those that wish to read the actual statutes, the maintenance statute that is used to set an initial maintenance award is 750 ILCS 5/504. The statute used for modifications or reviews of maintenance is 750 ILCS 5/510(a-5). For more information on how the original maintenance obligation is determined, please see our prior blogs on that topic.
Presuming the maintenance award is modifiable (which in most cases it is), the modification can be filed at any time, by any party. When seeking a modification, before getting to the issue of what the new maintenance amount should be, it is the burden of the petitioner to first present a substantial change in circumstances to modify maintenance. A substantial change in circumstances is a drastic change from the last time the maintenance was set or modified. Some examples of substantial changes in circumstances include increased income at work, loss of employment, new employment or retirement. The change can be related to the recipient of maintenance or the payor of maintenance. Absent a substantial change in circumstances, the petition would be denied. If a substantial change in circumstances exists, the amount of maintenance would be decided by considering the factors under both the statute used to originally set a maintenance award AND the factors under the modification statute. Without going into detail for each factor, the general factors include the lifestyle enjoyed during the marriage, income of the parties, access to other assets, good faith efforts to find employment, the health of the parties and tax consequences of the maintenance.
A review of maintenance is set up by a prior court order stating words to the effect, “maintenance shall be reviewed….” or “a review of maintenance shall be on such and such a date.” With a review, there is no requirement for showing a substantial change in circumstances. Rather the court will take a fresh look at the maintenance award. Well, not entirely fresh as the court should consider the circumstances of the prior award and determine if maintenance should continue, be terminated, increased or decreased. Depending on the wording of the divorce decree or settlement agreement, the initial burden may be on the recipient of maintenance to show an effort at becoming self-sufficient prior to the court determining the maintenance amount moving forward. If you have reviewable maintenance, please review your divorce decree or settlement agreement as there may be timeframes in which you must file for your review.
This brings us to the key question, does the old statute apply to maintenance review cases or does the new statute applies? First, the change in the statute has consistently been held to be a substantive change, prohibiting retroactive effect. What this means is that the new formula will not be applied to recalculate maintenance in cases decided prior to January 1, 2105. The new maintenance statute and formula only apply to cases decided after its effective date. So if you had a maintenance award established after January 1, 2015, your reviews and modifications of maintenance will be subject to the current law and more than likely the maintenance formula will be continued to be used.
However, if your divorce was finalized prior to January 1, 2015, the new maintenance formula will not be used in any modifications or reviews of maintenance. In considering petitions to review or modify maintenance in these cases, the court will just look at the circumstances and facts considered when the original maintenance award was established and what has changed if anything. The new maintenance amount will be determined after considering these facts. For example, if the maintenance amount was set so as to equalize incomes between the parties, it is likely the court will try to maintain an equalization of the incomes. This does not prohibit the court thought from considering the new maintenance formula to see if the amount of maintenance to be paid is fair and reasonable.
Overall, while the new maintenance law may have changed the amounts of maintenance awarded, it does not entirely replace the old law and how the old law was applied in determining maintenance. If you or your former spouse are considering a review or modification of maintenance, please contact us to discuss your options and obtain the legal representation you need and deserve.
- Roman J. Seckel
- Drendel & Jansons Law Group
- 111 Flinn Street
- Batavia, IL 60510
- (630) 406-5440
- (630) 406-6179 fax
For more articles on family law topics, see the Drendel & Jansons Family Law Blog.
For family law resources, see the Drendel & Jansons Family Law Resource Page.