BUFFALO GROVE SPOUSAL SUPPORT AND MAINTENANCE ATTORNEY
Are There Guidelines For Maintenance?
In many divorce proceedings, spousal support is a major focal point. This is particularly true when one spouse has been a stay-at-home parent and has not worked in recent years. On January 1, 2015, the concept of maintenance guidelines was introduced to the State of Illinois, during a period of great revision to the Illinois Marriage and Dissolution of Marriage Act. The Court does continue to have discretion to apply the Guidelines or not, depending on the circumstances of the case. It means that a compelling case needs to be made no matter what side you are on in a maintenance case.
How to determine the length of maintenance under the new maintenance guidelines
In the determination of the length of spousal maintenance or spousal support under the new guidelines, the length of the marriage is of the highest importance, with considerable increases in the length of maintenance occurring for marriages lasting more than 5, 10, 15, or 20 years. The new maintenance statute calculates the length of maintenance by multiplying the length of the marriage by a particular factor.
Years of Marriage
0 – 5 years .20
5 – 10 years .40
10 – 15 years .60
15 – 20 years .80
For a marriage that was 20 years or more, the new guidelines provide for permanent maintenance, or maintenance equal to the duration of the marriage.
Be sure that you have an experienced lawyer on your side who understands the law and will fight to protect your interests. At Buffalo Grove Law Offices, we represent clients throughout the Chicago and Collar County area in all types of spousal support matters. No matter which side of the case that you are on, we are committed to doing everything in our power to secure the most favorable possible result on your behalf.
An Award Of Maintenance Can Be A Combination Of The Following:
- Rehabilitative maintenance was the type of maintenance that was most commonly awarded. The Court realized that it could not look into a crystal ball and determine when the person who would be receiving it could earn sufficient monies on their own. It would tend to be awarded in a case in which the person receiving it is younger, or is able to eventually enter or return to the work force and become financially self-supporting. This type of maintenance might include payments for the education that is necessary to enable the person receiving it to become self supporting. Take note that the person who is receiving this type of maintenance must prove to the court that he/she has worked diligently to improve their situation before the court would consider an extension of maintenance. If that person has not done so, to the Court’s satisfaction, maintenance may be terminated whether or not the person continues to need it. The current revised maintenance statute does not refer to the concept of reviewable maintenance, but the current statute also does not refer to the termination of maintenance after a given period (that the person receives maintenance), so that a review is expected.
- Temporary maintenance, although not specified in the current revised maintenance statute, continues for a specific period of time, perhaps one to two years. This type of maintenance may have been awarded if the persons involved were equal income earners, but due to certain circumstances, one person may need financial assistance in order to get things back together again.
- Maintenance, whether calculated under the Guidelines or in the discretion of the Court (after considering various factors in the maintenance statute), will continue for the set period of time that has been determined, or until the first of the following situations occurs: the death of either party, one party cohabits with a third person in the avoidance of marriage, or the remarriage of the person receiving the maintenance. This type of maintenance is always modifiable.
- Lump sum maintenance is one payment of maintenance instead of weekly or monthly payments. Lump sum maintenance (like all forms of maintenance) is taxable to the person receiving it. Be sure to consult with an accountant who is experienced in divorce to determine the tax consequences of this type of maintenance.
- Unallocated maintenance is a form of maintenance that is a combination of child support and maintenance paid to one party. The party receiving this form of support pays the entire tax burden on it, while the paying party deducts the entire amount from their taxable income. The parties who use this form of maintenance tend to use it to balance the benefits of taxable/non taxable income between them. If, for example, the mother has a much lower tax rate than the father, then mother may accept unallocated maintenance so that the tax burden is lower to her than to the father who is paying the support. This type of offset to taxes is approved by the IRS, if it is done appropriately. The Court cannot order this type of support, but it can be agreed on between the parties.
Building The Strongest Possible Case To Support Your Position
Spousal support, sometimes referred to as spousal maintenance, is not automatic in Illinois. But, the revised maintenance statute now provides maintenance guidelines, comparable to child support guidelines. The court has broad discretion to award maintenance or not to award it. If the court awards maintenance, in Illinois, limited duration maintenance is almost never awarded unless the court can point to a fixed date where maintenance is not needed. This means that in most instances, the court can either award maintenance in an open-ended manner terminable upon death, remarriage, or a change in circumstances of a substantial and continuing nature or else not award it at all. This can make maintenance an all or nothing proposition at trial.
Parties can agree to contractual maintenance on a fixed term, but fixed terms are not likely in Illinois, absent an agreement, unless the court can point to a future, non-speculative date where maintenance is no longer needed. The issue of whether “cohabitation” (see below) terminates maintenance is complex, not automatic, and based on numerous factors.
When you hire our firm, we will present the strongest possible case for or against an alimony award based on your best interests. The court looks at several factors when considering spousal support, including:
- the need of one spouse versus the other spouses’ ability to pay
- the earning capacity of each spouse
- the length of the marriage
- the age and health of the spouse seeking support
- the life style of the parties during the marriage
- the Judge may consider any economic circumstance of either party that the Judge deems just and proper
The Judge will consider sacrifices and missed opportunities on the part of both spouses, such as the one spouse supporting the other through school or one spouse staying home with the children, sacrificing his or her career.
A chief concern in these proceedings is the duration of the maintenance. The court wants to ensure provisions for both spouses immediately following the divorce based on the standard of living of the parties during the marriage and the income-producing assets of each party. Also, the judge cannot predict what circumstances may arise during the length of the support.
Termination Of Maintenance Based On Cohabitation
Unless otherwise agreed by the parties in a written agreement set forth in the judgment of otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident continuing conjugal basis. A conjugal basis is a spouse being involved in a de facto husband and wife relationship with a third party. The spouse who is paying maintenance (payor) who seeks the termination of maintenance because the other spouse (payee) is cohabiting with a third party, must prove by the manifest weight of the evidence the existence of a resident, continuing conjugal relationship. To satisfy the burden, the payor must make a substantial showing that the former spouse is involved in such a relationship.
To demonstrate the existence of a de facto husband and wife relationship, while proof of sexual conduct is no longer necessary, something more than merely living under the same roof with a person of the opposite sex [or same sex] is required; lesser involvement by the payee spouse does not require termination of maintenance. The rationale behind termination of maintenance when resident, continuing, conjugal cohabitation exists is the inequity created when the ex-spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not legally formalize it, with the result that he or she can continue to receive maintenance. Every case in which a termination of maintenance is sought presents a unique set of facts. The unique facts would include length of the cohabitation relationship, the amount of time the couple spends together, the nature of the activities that the couple engages in, the interrelationship of their personal affairs, vacationing together, and holidays together.
We understand both your needs and how the law applies to those needs. We have helped many couples through this process and can often foresee circumstances and needs that may arise during the duration of maintenance. We help to create an agreement that proactively addresses those issues, protecting the interests of our clients.
Maintenance And Taxes
There is a Recapture rule for maintenance:
If your maintenance payments decrease or terminate during the first 3 calendar years, you may be subject to the Recapture rule. If you are subject to it, you have to include income in the third year part of the maintenance payments that you already deducted. Your spouse can deduct in the third year part of the maintenance payments he or she previously included in income.
The 3 year period starts with the first calendar year that you make a payment qualifying as maintenance under a decree of divorce or separate maintenance or a written separation agreement. Do not include any time in which payments were being made under a temporary support order.
MAINTENANCE REQUEST IS DENIED BECAUSE WIFE HAS NON-MARITAL ASSETS
In regards to Marriage of Sturm, 2012 IL App (4th) 110559 (June 12, 2012) Ford Co. (COOK) Affirmed. The Court properly considered the factors in Section 504 of the Illinois Marriage and Dissolution of Marriage Act in denying the wife’s maintenance request. The Court concluded that the property of each party was Fairly divided, and the needs and present and future earning capacity of each were approximately the same. The Court properly considered, as a factor under Section 504(a)(1) that maintenance was not necessary because of the wife’s nonmarital assets, including her life insurance proceeds from the death of the parties’ son.
The Office of Child Support Enforcement does not collect spousal support unless a child support obligation is also being processed.
Parties are divorced in a country outside of the United States. For our purposes, let’s have a Netherland’s Judgment for Dissolution of Marriage. Children are emancipated, and ex-wife receives maintenance for a period of time. Ex-wife is now our Petitioner in the U.S. in her action under the Uniform Interstate Family Support Act (750 ILCS 22/101 et seq.) She seeks to register the Netherland’s Judgment and collect maintenance from her ex-husband, an Illinois resident. Ex-wife seeks to collect maintenance through an Income Withholding for Support Order directed to the ex-husband’s employer and paid to the Illinois State Disbursement Unit. She has sent the original notice of her intended withholding to the employer. Ex-husband calls you and asks if ex-wife can do this, and if his employer can garnish his wages because of ex-wife’s filings in Illinois. The employer is ready to garnish ex-husband’s wages and you are about to begin your foray into international law and wage garnishments through the state of Illinois’s Child Support Office.
750 ILCS 22/607(a) provides in pertinent part that: A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
(5) there is a defense under the law of this State to the remedy sought.
750 ILCS 22/102 Definitions defines the word, “State”. The term, State, includes: (B) a foreign country or political subdivision that:
(i) has been declared to be a foreign reciprocating country or political subdivision under federal law;
(iii) has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this Act.
“The Netherlands and the United States have entered into an agreement for the enforcement of maintenance (support) obligations (Netherlands Treaty Series 2001, 117 and 134) concluded on 30 May 2001, entered into force on 1 May 2002: Agreement Between the Government of The United States of America and the Government of the Kingdom of The Netherlands for the Enforcement of Maintenance (Support) Obligations. This Agreement provides that it is authorized by the U.S. Congress in section 459A of the Social Security Act, Title 42, United States Code, section 659A. Article II, Scope, page 2 of the 12 page Agreement, states: This Agreement shall apply to maintenance obligations arising from a family relationship…. However a maintenance obligation towards a spouse or former spouse where there are no minor children will be enforced in the United States under this Agreement only in those states and other jurisdictions of the United States that elect to do so.” (Agreement cite information provided above.)
“International cooperation under the Agreement consists of the following: Both The Netherlands and the U.S. have appointed a central authority. For The Netherlands this is the National Bureau for the Collection of Maintenance Payments (LBIO) in Gouda, The Netherlands. In the U.S., the federal authority is the Office of Child Support Enforcement, part of the Department of Health and Human Services in Washington, D.C. The Office is linked with local central authorities in all states of the U.S. who are responsible for implementing federal legislation concerning the reciprocal enforcement of maintenance obligations between different states of the U.S.. These local authorities will also handle applications from The Netherlands that are based on the Agreement.”
“The Agreement makes a partial exception for maintenance obligations between spouses or former spouses who have no minor children, where such obligations have to be enforced in the US. Not all American states will accept applications for the enforcement of such obligations. Information as to which states are excepted can be obtained from the central authority.”
(Bilateral agreement on maintenance obligations with the United States, http://chicago.the-netherlands.org/binaries/content/assets/postenweb/v/verenigde_staten_van_amerika/the-netherlands-consulate-general-in-chicago/import/services/bilateral-agreement-on-maintenance-obligations-with-the-united-states)
‘The Code of Federal Regulations (45 CFR 301 et. seq.) sets forth federal regulations which govern the individual state IV-D child support programs. 45 CFR 301 General Definitions, et seq. sets forth federal regulations which govern the individual state IV-D support programs. In the definitions section, “Spousal support means a legally enforceable obligation assessed against an individual for the support for a spouse or former spouse who is living with the child or children for whom the individual also owes support. In the State Plan Requirements Section, the State IV-D Plan must provide for establishing paternity for children born out of wedlock, securing support for children, and “…securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the Title IV-D State Plan.’
In sum, the State IV-D agency may only enforce a spousal support obligation against an obligor 1) who is also legally obligated to support a child or children living with the spousal support obligee and 2) whose child support obligation is currently being enforced by the State IV-D program. (International Child Support Cases, http://www.ncsea.org/wp-content/uploads/2012/02/SPOUSAL_ONLY_LAWPOLICY.pdf). The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law Number 104-193 (PRWORA) expands the possibility for spousal support enforcement by an IV-D agency without a corresponding child support order if the enforcement request is initiated by a foreign country with which the U.S. federal government or state has a reciprocity arrangement. PRWORA amends the IV-D State plan requirement as follows:
(b) STATE PLAN REQUIREMENT- Section 454 (42 U.S.C. 654)…is amended….(3) by adding after paragraph (31) the following new paragraph:
….“(B) provide, at State option, notwithstanding paragraph (4) or any
other provision of this part, for services under the plan for enforcement of
a spousal support order not described in paragraph (4)(B) entered by such a country (or subdivision); ….” (emphasis added)
Whether a State IV-D agency exercises its option to respond to an international spousal support only enforcement request is governed by State law and agency policy. The IV-D agency must use state laws regarding the intrastate and interstate establishment of support obligations. (45 CFR 302.31) Id. at International Spousal Support Cases cited supra.
45 CFR 302.31(2): (2) In the case of any individual with respect to whom an assignment as defined in § 301.1 of this chapter is effective, to secure support for a child or children from any person who is legally liable for such support, using State laws regarding intrastate and interstate establishment and enforcement of support obligations. Effective October 1, 1985, this includes securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the title IV-D State plan.
42 CFR 459a: (cited in Netherlands-U.S. Agreement, p. 1)
Sec. 459. [42 U.S.C. 659] (a) Consent to Support Enforcement.—Notwithstanding any other provision of law (including section 207 of this Act and section 5301 of title 38, United States Code), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 466 and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.
Will Illinois accept this application for the enforcement of spousal-maintenance-only obligation? No. The Netherlands/U.S. Agreement specifically states that the U.S. office for enforcement is that of the Office of Child Support Enforcement (OCSE). The OCSE has clearly stated that it will not enforce spousal support-only obligations of another State if there is no child support collection involved. OCSE document from OCSE’s website, which provides a list of countries which the U.S. has declared to be foreign reciprocating countries for child support purposes. Netherlands is listed as a country, for the purposes of child support collection.
According to the U.S. Department of Health and Human Services (https://extranet.acf.hhs.gov/irg/welcome.html), regarding Illinois, The Netherlands is a reciprocating country only on child support not on spousal support. Illinois does not exercise its option to enforce spousal-only orders for foreign reciprocating countries.
750 ILCS 22/607(b) states in pertinent part that: If a party presents evidence establishing a full or partial defense under subsection (a), a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders.
Time to stop that garnishment procedure from moving forward.
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