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DuPage County divorce lawyersWhen spouses age 50 and older get divorced after decades of marriage, this is commonly known as gray divorce. People going through a gray divorce may have different concerns and priorities than younger divorcees have. One such area is spousal maintenance, in which someone who relied on their spouse’s income during the marriage will continue to receive financial support. Spousal maintenance is not mandatory but is often part of a gray divorce. The maintenance recipient may also be more dependent upon the monthly payments than younger divorcees. 

There are three main reasons why spousal maintenance in a gray divorce is different:

Length of the Marriage

Assuming that it was not a recent marriage, couples in a gray divorce have likely been married for decades. The number of years that you were married is how Illinois calculates how long the maintenance payments should last following the divorce. When spouses have been married for 20 years or more, courts will often award “permanent maintenance.” Maintenance without an end-date is a major factor in the long-term cost of the payments.

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How to Determine a Fair Spousal Maintenance AgreementSpousal maintenance is not a requirement for every divorce agreement but is often included because it is considered fair compensation for the recipient. If there is a large income discrepancy between spouses, then the recipient may be entitled to financial support from the payor. What is a fair amount of maintenance to award and how long should the payments continue? Illinois courts consider factors such as the duration of the marriage, the income potential of the recipient, and how long the recipient may need to become self-supporting. There are other factors that can be relevant to a spousal maintenance ruling:

  1. Standard of Living: The spousal maintenance recipient is not limited to receiving only enough support to live off of. If the spouses had an expensive lifestyle during their marriage, then it is reasonable for both spouses to be able to continue a similar lifestyle after the divorce. It would be unfair to expect a lower-income spouse to live a much poorer lifestyle while the other spouse keeps the same standard of living, especially if both spouses and their children had become accustomed to that lifestyle after several years.
  2. Career Sacrifice: When one spouse becomes highly successful in their career, it is often possible because of sacrifices that the other spouse made. The other spouse may have foregone earning a college education or quit their job in order to raise the children or help their spouse start a new business. Now that they are separated, the other spouse may have difficulty finding a job to support themselves. They may need time to complete their college education or update their job skills. It is fair to expect the higher-income spouse to support the lower-income spouse if they owe their success in part to their spouse’s sacrifice.
  3. Parental Responsibilities: Divorcing parents already have child support to cover their child-related expenses. However, the division of parenting time can have an indirect effect on the parents’ incomes. If one parent is responsible for significantly more parenting time, then they may be limited in the number of hours they can work or projects they can take on. With these limits to their ability to increase their income, they may be more reliant on spousal maintenance payments.

Contact a Naperville, Illinois, Divorce Attorney

Negotiating spousal maintenance can be tricky because there is greater flexibility in determining the amount and duration of the payments than with child support. A DuPage County divorce lawyer at Calabrese Associates, P.C., will help you determine what a fair maintenance agreement would be. To schedule a consultation, call 630-393-3111.

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When Do Spousal Maintenance Payments End?Spousal maintenance, if awarded during a divorce, can last a couple of years to the rest of your life. The duration of your spousal maintenance will rely on several factors, such as:

  • How long you were married;
  • The financial means of the recipient; and
  • Whether you agree to an end-date in your divorce.

New circumstances can also allow the termination of spousal maintenance. Here are five ways that spousal maintenance payments can end:

  1. Automatic Termination: A court that awards spousal maintenance during a divorce has the discretion to determine whether it should be temporary or permanent. Illinois courts normally use the duration of the marriage to determine the duration of maintenance. A table shows how maintenance payments will continue for a period of time that is a percentage of how many years the spouses were married. For instance, maintenance payments will last for a time that is 20 percent of the duration of the marriage if the spouses were married for less than five years. The percentage increases for every two years that they were married. Divorcees who were married for 20 or more years often have permanent spousal maintenance.
  2. Negotiated Termination: Spouses can decide their own termination date for spousal maintenance if they can agree on the payments without needing the court to decide. They can reach this agreement during the divorce negotiations or as part of a prenuptial agreement. The maintenance recipient can also voluntarily terminate the payments as long as they were not coerced into doing so.
  3. Remarriage: Spousal maintenance payments automatically end if the recipient remarries or cohabitates with a partner in a relationship that is effectively a marriage. With cohabitation, you will need to prove that your former spouse is sharing their life and finances with their partner.
  4. Death: Spousal maintenance often ends if either party dies before it is scheduled to be terminated. However, a divorce agreement can stipulate that the payor’s life insurance will continue payments to the recipient after the payor's death.
  5. Change of Circumstances: The payor or recipient can petition to modify spousal maintenance if there has been a significant change of circumstances, such as an increase or decrease in income. In some situations, the court may discontinue the maintenance payments if they are no longer appropriate. These situations may include the recipient increasing their income so that it is equal to or greater than the payor’s income or the recipient not making a good-faith effort to become self-supporting.

Contact a DuPage County Divorce Attorney

Spousal maintenance has become more difficult to negotiate since the alimony tax deduction was eliminated this year. A Naperville, Illinois, divorce lawyer at Calabrese Associates, P.C., can help you, whether you would be the payor or recipient of maintenance. Schedule a consultation by calling 630-393-3111.

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Illinois Adjusts Spousal Maintenance Law Ahead of Tax ChangesIllinois recently passed a law that changes the formula and court instructions for calculating spousal maintenance as part of a divorce. The law goes into effect at the start of 2019, which is the same time that a federal tax law eliminating the alimony deduction goes into effect. Illinois is adjusting its spousal maintenance law because the tax law will put a greater burden on people paying maintenance. Since the new tax law was announced, lawyers have warned divorcees that it may become more difficult to reach a spousal maintenance agreement if the payor cannot use the alimony deduction. Illinois’ new law will try to make court decisions on spousal maintenance more equitable for both spouses.

Alimony Deduction

Any spousal maintenance agreements approved before the end of 2018 are still eligible for the alimony tax deduction, and payors under existing maintenance agreements can continue claiming the deduction until a change of circumstances requires them to modify the agreement. With the alimony deduction, payors can deduct the full value of their annual maintenance payments from their federal income taxes. Payees must report the maintenance that they receive as taxable income. When the deduction is eliminated, the payor will save less on his or her taxes, and the payee will not pay taxes on his or her maintenance.

Illinois’ Response

Divorcees may be less likely to reach a spousal maintenance agreement on their own because the alimony deduction was an incentive for the payor to agree to larger maintenance payments. Illinois’ new maintenance law tells the courts to consider the tax consequences for each party when deciding on spousal maintenance. It also changes the spousal maintenance formula so that the courts:

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Elimination of Alimony Deduction Gives Urgency to DivorcesNegotiating spousal maintenance agreements during divorce may become more contentious because of a change to a long-standing tax law. The federal tax reform bill passed in late 2017 eliminated the popular alimony deduction for federal income taxes. The deduction is an incentive for higher-income spouses to agree to pay spousal maintenance. With the uncertainty that the change has created, many divorcing couples are rushing to complete their agreements before the law goes into effect.

How It Works

The current tax law allows spousal maintenance payers to deduct the value of their annual payments from their total taxable income. The maintenance recipient must report the money as taxable income. The change to the law will make maintenance tax-neutral. The payer can no longer claim a deduction, and the recipient will no longer pay taxes on the payments. There are three caveats to the law that benefit those who want to continue using the alimony deduction:

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