Divorce can be one of life's most stressful and traumatic events. While navigating through all of the emotional impacts of divorce, it can be difficult to focus on the financial and legal considerations. To ensure that you are adequately protected from a financial and legal point of view, it is crucial to contact a family attorney. A top Illinois family attorney will be instrumental in combining their expertise and your preferences to make the most logical and strategic decisions on your behalf.
One of the most common points of contention during a divorce is spousal support or maintenance, which is often referred to in popular culture as alimony. Maintenance is financial support paid to one's spouse or former spouse in the form of payments made over a specified period of time. Maintenance is calculated separately from child support, which is support paid towards the support of the children and on a child support obligation.
Determining maintenance is a very discretionary process and it will always vary from case to case, and even Judge to Judge. It is for this reason that it is of the utmost importance that your divorce attorney has the requisite experience in handling divorce and post-divorce cases.
At Dolci & Weiland, our experienced family law attorneys understand that to obtain the appropriate amount of maintenance, a thorough knowledge of the facts of the case and the law that applies is essential. Contact our divorce lawyers and during our free initial consultation, we will get as many facts as we can to determine the possibility of obtaining or increasing maintenance or to defend against a maintenance claim.
While the law sets out the parameters to determine maintenance through a standardized formula, several of the criteria within the formula needs to be argued and proven in court. It is ultimately a judge who will use their discretion to determine the final figures. In order to maximize your chances of receiving the most favorable outcome possible, it's important to learn about each of the different factors considered. Please read the information below on the nine different Illinois Divorce Maintenance Factors.
1. The Income and Property of Each Party
The first assets that need to be divided, are any income or property that is considered either "alleged marital property within the sole control of one party" or "alleged non-marital property within access to party." In other words, any income or property gained during the marriage as well as any income or property acquired outside of the marriage and owned solely by one spouse. In the latter case, you or your Illinois family law attorney will need to prove why or why not, the spouse seeking maintenance is entitled to a share of this income or property. An example could be a holiday home owned solely by one spouse, but that was used on a regular basis by the couple and their children.
2. The Needs of Each Party
Establishing the needs of each party is a highly discretionary factor that will change from case to case and judge to judge. Having an Illinois family law attorney would allow you to benefit from their experience and knowledge of case law of what judges have accepted in the past.
3. The Realistic Earning Capacity of Each Party
Determining the present and future earning capacity of each party is important in all divorce cases, but especially when there is a significant difference in the earning capacities of the two parties. Whether you are a single-income household or a two-income household where one spouse earns more than the other, as soon as one spouse earns a greater share of the household income they will owe the other spouse a maintenance award, notwithstanding the other maintenance factors. You can find examples of how earning capacities can affect maintenance calculations, here on our website.
This factor also takes into consideration any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having given up or delayed education, training, employment, or career opportunities due to the marriage. In other words, a spouse who has invested their time and efforts in the marriage and has forgone career or academic pursuits due to the marriage will be able to have these impairments of present and future earning capacity considered in the maintenance calculations.
This also includes the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
While this factor has traditionally been used to support maintenance claims of women who have given up academic and professional pursuits to devote time to their marriage and child-rearing, this is by no means an option restricted to only one gender, and men can benefit from this consideration as well.
4. The Age and the Physical and Emotional Condition of Both Parties
Any "Impairment to Present Earning Capacity of Either Party, Including Age and Physical and Emotional Health" will be considered in calculating the divorce maintenance from one spouse to the other. This is a separate consideration from the more general "Needs of Each Party" category.
5. The Standard of Living Established During the Marriage
This factors is among the more subjective in the calculations and often requires the expertise of an experienced Illinois divorce attorney A DuPage County divorce attorney can help determine what should be claimed in order to have tangible evidence of the established standard of living during the marriage, taking into consideration past cases and other factors unique to DuPage County. This tends to be a factor invoked in cases of high net-worth households, but can still be used in a variety of situations.
6. The Degree of Complexity of the Marriage Dissolution
Judges will take into consideration what types of responsibilities and obligations need to be divided when a couple dissolves a marriage, along with the costs of proving such matters in court. The degree of complexity can include "allocation of parental responsibility, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both" as reasons for awarding more or less maintenance to a spouse.
It should be noted again that while the allocation of parental responsibility is included, marriage maintenance is an entirely separate calculation than that of child support.
7. Each Party's Access to Relevant Information
This factor is used to protect a spouse in situations where the other is trying to hide information from them. This often involves the use of undisclosed bank accounts or other stratagems aimed at underestimated their net worth with the aim of minimizing their maintenance obligation to the other party.
This is another situation where a party can benefit from the experience of a top Illinois divorce attorney who has seen such strategies employed and successfully argued to have such maneuvers factored into the maintenance calculations.
8. Attorney Fees for the Other Party
This factor is another protective measure to ensure that the maintenance award will not be entirely absorbed by legal costs. Judges need to consider "the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party" in their maintenance calculations.
9. Any other factor that the court expressly finds to be just and equitable
This is often considered to be a catch-all factor that allows a judge to consider any situation that doesn't fit in the above-mentioned categories but that should be considered in order to fairly calculate maintenance.
Again, this provides another example of where consulting a top Illinois family law attorney can help you achieve the solution you seek after the dissolution of a marriage.
Once the Maintenance Amount is Established
The final maintenance award for a divorce is always broken down into two parts: the amount of maintenance awarded, and the duration of time the maintenance will be awarded. Once the above-mentions factors are used to calculate the maintenance amount, an additional calculation must be made to determine the duration of the maintenance payments.
The 2018 enactment of HB 2537 reshaped Illinois divorce and maintenance laws by modifying the schedule that determines the duration of maintenance. To calculate duration, you need to multiply the length of marriage with the corresponding multiplying factor.
At Dolci & Weiland we have three generations of DuPage County divorce lawyers who are deeply in tune with what an emotional roller coaster a divorce may be. It is crucial to find a family attorney who is there to make strategic and logical decisions on your behalf.
If you have questions or concerns about your divorce case, please call our law office at (630) 261-9098. At Dolci & Weiland, we understand just how much is at stake in a divorce case. That's why we strive to provide our clients with the dedicated legal representation they need, to achieve the results they want and deserve.