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How Courts Determine Support Orders

Put simply, spousal support is money one spouse pays to another in order to offset the economic effects of a divorce. Often referred to as “alimony” off-hand, the term is mostly not used in Illinois and is instead called spousal “support” or “maintenance”. The goal of these payments is to ensure that neither person is significantly better off than the other and that both parties can continue the standard of living they are accustomed to.

For couples that earn less than a combined $250,000 annually, and are not paying any other support from a prior divorce there is a formula applied to determine maintenance:

(30% of the payer’s gross income) – (20% of the payee’s income) = maintenance payment. The maximum that the payee receives cannot be more than 40% of the couple’s combined income.

The length is determined in large part by the length of the marriage. It can get a bit dizzying looking at the formula, so let’s look at an example:

Spouse A, “Chris”, earns $70,000 a year and spouse B, “Jean”, earns $120,000 and have been married for 12 years. So assuming Chris has been awarded a support order:

Jean: (30% of $120,000 = $36,000)  –  Chris (20% of $70,000 = $14,000) = $22,000.

If it seems high, that’s because we have yet to apply the 40% cap. Their combined income is $190,000, so 40% of that is $76,000. So if Chris were to receive the full $22,000 in addition to his $70,000 a year he makes normally, it would exceed $76,000 considerably. So, the court would reduce that $22,000 to about $6,000 a year. In the case of their marriage, this would be paid for about 7 years (more details on how the duration is determined below).

The legal basis of spousal maintenance is rooted in an effort to grant a measure of independence to a financially dependent spouse. A typical example of this is when one spouse has given up their career to be a homemaker in order to support the other in chasing a higher career level. Though the formula can be used as a guide to spousal support, the court uses a number of factors to determine how maintenance is specifically paid out:

  1. The income and properties held by each spouse, taking into account the property division process
  2. The needs of each spouse
  3. The age, income, job skills, employability, and physical health of each spouse
  4. The length of the marriage
  5. Earning capacity and career potential of each spouse
  6. Tax consequences as a result of the property division aspect of the divorce
  7. Reductions to career and earning potential as a result of one spouse delaying or stopping their career advancement as a result of marriage or childcare
  8. Any agreements made by either spouse in a prenuptial or post-nuptial agreement
  9. Contribution by one party to the increased earning power of the other
  10. The time required by the spouse seeking maintenance to secure job training or education necessary to advance their career and employment prospects
  11. The couple’s standard of living during the marriage
  12. Any other factor the court considers to be “just and equitable”

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What will spousal maintenance end up being in your marriage? Illinois uses a fairly straight forward formula for calculating alimony. Click here to get an estimate.

Things You Should Know Before You Proceed

Tax Implications of Alimony Payments

Whether paying or receiving alimony payments there are tax implications you should know. Unlike Child Support, spousal maintenance payments can be deducted by the party paying them for taxes and are counted as income for the receiving party.

There are instances where spousal support can be classified as nontaxable and nondeductible if agreed upon in the divorce settlement. That said, both sides must agree to classify the support payments the same way. In other words, one party cannot claim the support payments as a tax deduction while the other claims the income as nontaxable.

Receiving Support Payments

If you’re seeking support payments from your spouse, you should consider the impact it will have on your taxes. For most people, when you receive income from an employer they withhold taxes from your paycheck, but this is not true of your spouse writing you a support check.

One way to avoid a large tax bill at year’s end is to pay your estimated taxes each quarter, in the same way someone who is self-employed might. You could also choose to withhold the additional amount from your paycheck. In the end, however you handle the additional income afforded by maintenance payments is up to you, but taking some sort of action in advance of tax day is generally better than waiting for the bill on April 15.

IMPORTANT: If your spouse pays support by paying your expenses (such as mortgages, car insurance, car payments, student loans, etc) on your behalf, these payments will be treated as income and need to be included on your income taxes.

Paying Spousal Support

If you are the one paying spousal support, these payments can be deducted from your taxable income on your yearly tax return. Remember, this is only true of spousal maintenance, not child support or property division.

The IRS is very picky when it comes to support payments, especially in the first year. They scrutinize the payments to ensure property distributions and other post-divorce expenses are not included as deductible.

IMPORTANT: Agreements calling for larger payments at first and smaller payments later will be scrutinized more thoroughly. At times, the IRS will assume these large upfront payments are in lieu of property or something else. They get particularly aggressive if your agreement calls for a $15,000 reduction or more in support after the first three years.

Another important consideration that should be made when negotiating support payments is ensuring you DO NOT tie the end of the support payments to anything relating to your children (like moving out or finishing college). If audited, the IRS may view the support payments as child support instead, which is not tax deductible.

Finally, even if making payments to third parties and not directly to your spouse (such as mortgage payments, car insurance, car payments, student loans, etc), for the party receiving alimony these payments should be considered payment directly to the alimony recipient. These payments should be included on your income taxes as a deduction.

Duration of Spousal Support in Illinois

Inevitably in a divorce, there is usually a great amount of debate surrounding how much support payments will be and, more importantly, how long they need to be made. Chances are, this will be the most contested aspect of your divorce proceedings. In Illinois under the standard formula, spousal maintenance is roughly paid out in relation to the number of years married as determined below:

(Marriage 0-5 years) x (20%)
(Marriage 5-10 years) x (40%)
(Marriage 10-15 years) x (60%)
(Marriage 15-20 years) x (80%)
Marriages of 20+ years – the court will either order permanent spousal maintenance or maintenance for the length of the marriage.

So for example, if you were married for 13 years, spousal support would happen for about 60% of that time (roughly 8 years).

In Illinois, maintenance is determined to be reviewable or “non-modifiable”. In the case where the spouses agree to a non-modifiable agreement, the payment of support will end at the predetermined time regardless of any changes in financial or personal circumstances on a fixed date. Spousal support also automatically ends if the party receiving support remarries or starts living with an intimate partner.

However, in the case of a reviewable maintenance award, the maintenance payments will be reviewed periodically to determine an end date or modify the amounts paid.

Since spousal support is court ordered, alimony payments can’t be modified or terminated at the discretion of one of the spouses. However, if a spouse can make a case and show that circumstances have changed substantially since the original alimony ruling, it is possible the payments can be modified.

Here is are a few of the factors taken into consideration by the court when changing or terminating support payments:

  • Increases or decreases in salary of either spouse
  • Job losses or new job opportunities
  • Major change in cost of living and needs of each spouse
  • Ex-Spouse moving in with a new significant other
  • Ex-Spouse getting remarried

Generally terminating alimony is easier than getting it modified. There are two main causes for alimony to be terminated: A death or a new marriage. If one of these two scenarios occurs, do not stop paying your alimony as doing so could put you in violation of the agreement. Instead, notify the courts of the recent events as soon as you know about them. Show proof of the event and get a court order that allows you to discontinue your alimony payments.

Equal Protection Clause 

The Fourteenth Amendment, specifically the Equal Protection Clause, was set up in 1868 to ensure protections for every individual equally under the laws established in the United States.

While the Equal Protection Clause has been around for a long time, only recently have courts applied it to divorce cases and how support is paid.

In the past, the sex of a spouse wasn’t generally considered because men typically made more than their spouse. As a result, spousal support was always was paid to the female. But with an increase of women’s rights and more women in the workplace, this old method of thinking has changed. Now, the Equal Protection Clause prevents a spouse’s sex from determining who is paid support, and instead of focuses entirely on the facts of each case.

Types of Spousal Support Orders in Illinois

Temporary Support

Before the divorce is finalized, the court may order temporary support in order to help the lesser-earning spouse live during the divorce proceedings. This order will be determined during what is called a “Temporary Orders Hearing”. As suggested in the name, once all the facts become clear in a case, a different type of payment will usually be ordered once the case is complete.

Permanent Support

As the title suggests, permanent spousal support is paid indefinitely, especially in cases where it seems likely the other spouse will not ever secure regular employment. The only events that would stop permanent support from having to be paid are if one of the two spouses dies, or if the recipient ends up remarrying. Although rare, there may be instances where the recipient is still entitled to payment despite remarriage.

Despite the name, however, it doesn’t mean that the amount paid is permanent. That can still fluctuate up and down based on changes of circumstances for the payer or recipient.

Rehabilitative Maintenance & Reviewable Maintenance

Rehabilitative Maintenance is a form of temporary spousal support with the goal of providing temporary help to a spouse while they go to school or receive training. The ultimate goal is that the person receiving payment will reenter the workforce. This form of payment will be periodically reviewed by the court to determine if circumstances have changed for either side or if the spouse receiving payment has taken steps to improve their career prospects.

Similarly, reviewable maintenance is another form of temporary payment with the goal of the other spouse gaining financial independence. As outlined above, the court will take various factors into account if they deem that either side has had a change of circumstances worthy of changing the payment.

Lump-Sum Support

As the name states, lump-sum support is paid all at once instead of over time. This form of support won’t be ordered by the court but can be an option if you and your spouse agree to it. Usually, lump-sum is a consideration in cases where a property settlement isn’t an option. Lump-sum is unique in that it is even more permanent than permanent alimony, in so much as the amount can never be changed or altered.

As a lump-sum support is paid in full, it can’t account for future events or any changes in circumstances. Though it may be tempting to get all the support out of way at once, it would be best to consult with an experienced family law attorney who has worked with you on your case first. They can best determine if this is the right move for you, as once you make that decision it can’t be overturned.

Pick an Action to Begin Securing Alimony in Wisconsin

Secure Alimony during a Divorce Proceeding

Modify Alimony or Family Support Orders

Enforce Alimony or Family Support Orders

Terminate Alimony or Family Support Orders

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