New spousal support guidelines are coming to Illinois January 1, 2015. This blog post overviews the potential pros and cons of this new legislation.
The current law essentially awards spousal support, or maintenance as its also referred to, at the judge’s discretion after consideration of numerous factors. This has led maintenance awards to vary widely from case to case and the inconsistency made it difficult for family law attorneys to give clients a concrete answer to the question: “how much spousal support will I pay or receive and for how long?” Therefore, rather than settling their cases, many parties instead would choose to “gamble” and go to trial hoping to receive a better maintenance determination from the judge than they could negotiate out of court.
The new legislation uses a formula to pre-determine spousal support for cases with combined gross income less than $250,000. This means that many parties will know the exact amount they will either be paying or receiving in maintenance ahead of time as long as the judge applies the new law. What does this mean? Greater chance of settlement. If parties know exactly what they will pay or receive and for how long, there is less chance a party will proceed to trial over spousal support issue.
The new statute does not address what should be done for divorcing couples whose combined gross income is over $250,000. If your case falls in this category, you may be subject to the same uncertainty detailed above.
The new statute pre-determines the duration of maintenance awards in a manner that encourages individuals to file for divorce sooner rather than later.
How long a party will pay or receive spousal support, according to the statute, is determined as follows:
Number of Years Married Amount multiplied by # of Years
20+ years of marriage Court discretion to order permanently
A party who was married for 12 years prior to the date of filing for divorce would pay maintenance to the recipient for 7.2 years.
12 years of marriage * (.6) = 7.2 years of maintenance
Although this method makes it easy to ascertain the duration of the spousal support, it may also inadvertently encourage individuals to file for divorce prior to when they otherwise would have.
Picture the following scenario:
A family law attorney has a consultation with a potential client who is considering filing for divorce. The potential client and his wife have been married for 9 years. The potential client makes $200,000 per year while his wife makes $50,000.
If client holds off filing for divorce, then decides the following year that his marriage is not worth saving, client will pay former spouse $50,000 per year in spousal support. However, because he chose to wait to file for divorce, and now has been married for 10 years, he will pay maintenance for 6 years vs. the 3.6 years he would have paid if he filed for divorce having only been married for 9 years.
Because he waited an extra 6 months to file, he will ultimately pay $300,000 ($50,000/year for 6 years) in maintenance vs. the $180,000 he would have paid if he filed for divorce when he was first inclined to do so.
Further, because the statute is written with ambiguity, 5, 10, 15, and 20 years of marriage all contain overlapping percentage amounts. Therefore someone who has been married for 10 years could technically be paying spousal support for either 4 or 6 years. What judges will do in regards to this issue is undetermined and may vary. These issues are likely to lead to messy litigation and confusion amongst the court system.
Parties who may be negatively affected by this new legislation are encouraged to weigh the financial pros and cons of their case when deciding whether they should attempt settlement prior to its enactment. If you think this may apply to you, contact The Law Offices of Jonathan Merel, P.C.