Divorce court entered an order. 1) Wife’s maintenance was to terminate on her 66th birthday. This was when she was eligible for full social security benefits. 2) Husband’s 401(k) retirement account was to be liquidated in part to pay attorney’s fees. 3) Husband is to contribute to Wife’s attorney’s fees. 4) Husband’s later motion to modify maintenance to a lower amount is denied. Both parties appealed. The Appellate Court reversed in part.
1)There was no evidence to support terminating Wife’s maintenance on her 66th birthday. The evidence showed that wife would not be able to support herself. She may require permanent maintenance. The judgment should provide that the determination be made at that time. The trial court terminated maintenance without knowing anything about the parties’ financial circumstances at the time that Wife reaches age 66.
2) Husband’s 401k should not have been liquidated in part to pay interim attorney fees. Retirement accounts are exempt under Section 12-1006 of Code of Civil Procedure.
3) Wife not entitled to have Husband contribute to her attorney fees. She must show her own inability to pay the fees. She must show that he is able to pay her fees. The evidence supported Husband also did not have the ability to pay fees.
4) Husband’s motion to modify maintenance was based on his alleged change in employment status. There was no objective evidence of his bad back condition other than husband’s self-reporting of symptoms. The court considered the Husband’s pattern of not paying support in its finding of bad faith.
In re Marriage of Shen, 2015 IL App (1st) 130733