When It’s Business and It’s Personal: Small Business Ownership and Divorce in Illinois

If you own your own business, you know that it can be hard sometimes to not take things personally. With so much cash, sweat, and tears invested in your company, its successes or struggles will impact you in ways far beyond what is reflected on a balance sheet.

Just as your business can impact your personal life, your personal life can have a huge effect on your business, especially if you are going through a divorce.

The ownership, valuation, and division of small business interests in a divorce can be a major source of conflict. Whether you own your business by yourself or with other partners or members, it is important to understand how the end of your marriage will affect your business, your ownership interest, and your wallet.

In an Illinois divorce, property is divided into “marital” property and “non-marital” property. The former is property acquired during the marriage and will be equitably divided between the spouses. The latter is the property of the spouse who owned it prior to the marriage and will be awarded to that spouse.

As such, if one spouse owned a business prior to the marriage, it will generally remain their business after the divorce. But this is where things get complicated.

Businesses aren’t pieces of furniture; they don’t just sit there stagnantly. During the course of a marriage, businesses grow; businesses pay salaries and make distributions; businesses incur debt; businesses obtain capital and investments from the owners; businesses may add owners, including a spouse.

Much of what happens to the business while a couple is married means that both spouses may be entitled to an interest in the value of the business. For example, the following will be counted as marital property to be equitably divided:

  • Business ownership interest acquired during the marriage
  • The gain in value in the ownership interest of a business established before the marriage which accrued by personal effort of the owner spouse during the marriage
  • Discrete, distinguishable assets acquired by a non-marital business during marriage

Furthermore, a non-owner spouse may be entitled to a right of reimbursement for contributions made toward a non-marital business during the marriage.

When a business or an interest in a business is deemed to be marital property, the valuation of the business or ownership interest becomes a big issue. Each spouse may wind up retaining accountants or other experts to establish the value of the business such that the cash value can be allocated as part of the larger division of assets. Rather than force a divorcing couple to remain business partners, courts will often offset the value of the business interest by awarding other assets to the non-owner spouse.

Of course, a valid pre-nuptial agreement that addresses the issue of business ownership upon divorce can take all of this out of the court’s hands and bring clarity to both the divorce process as well as business operations going forward.

Louis R. Fine: Chicago Business Division and Valuation Attorney

Illinois business division and valuation issues are complicated and can have a long term impact on the financial well-being of both spouses. As an experienced Chicago divorce lawyer, I understand the complexities and challenges involved in dividing business interests as part of divorce. I work to ensure that every client receives what they are entitled to while minimizing conflict and acrimony throughout the process.

If you have questions or concerns about how your business may be impacted by your divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation. I look forward to assisting you.

A Crash Course in College Costs Under Illinois’ New Divorce Law: What Parents Need to Know

High school seniors in Illinois and across the country are anxiously awaiting the delivery of college acceptance (or rejection letters). At the same time, their parents are anxiously trying to figure out how they’re going to pay the astronomical costs of tuition and related expenses.

For divorced parents, however, this anxiety can be compounded with uncertainty or conflict about who if anyone has to pay for their child’s college costs and what the extent of those obligations are.

The sweeping changes to Illinois divorce law that became effective on January 1st include extensive and detailed provisions that attempt to bring clarity to college expense obligations in the event that the parties can’t otherwise agree. Here’s what you need to know if college is in your child’s future:

“Educational Expenses” Defined

As was the case under the old version of Illinois’ divorce law, either parent can petition the court to require the other parent to contribute to “educational expenses,” both before and after a child becomes a legal adult.

Section 513(d) of the revised Illinois Marriage and Dissolution of Marriage Act defines what are and are not “educational expenses” that a parent can be obligated to pay. Importantly, the extent of many of the obligations are pegged to the costs incurred for attending the University of Illinois, though the child can attend college anywhere.

“Education expenses” include:

  • the actual cost of the child’s post-secondary expenses, including tuition and fees, provided that the cost for tuition and fees does not exceed the amount of tuition and fees paid by a student at the University of Illinois at Urbana-Champaign for the same academic year;
  • the actual costs of the child’s housing expenses, whether on-campus or off-campus, provided that the housing expenses do not exceed the cost for the same academic year of a double-occupancy student room, with a standard meal plan, in a residence hall operated by the University of Illinois at Urbana-Champaign;
  • the actual costs of the child’s medical expenses, including medical insurance, and dental expenses;
  • the reasonable living expenses of the child during the academic year and periods of recess under certain circumstances; and
  • the cost of books and other supplies necessary to attend college.

College Doesn’t Last Forever

Under Section 513(a) of the new law, any contributions sought in a petition must be for expenses “incurred no later than the student’s 23rd birthday, except for good cause shown, but in no event later than the child’s 25th birthday” unless otherwise agreed to by the parties. If your 35-year-old daughter wants to go back to school to get her MBA, she is on her own.

A child is also on their own if they don’t keep their grades up. Any previously ordered obligation to pay for college costs terminates if the child fails to maintain a cumulative “C” grade point average, except in the event of illness or other good cause shown. Payment obligations also terminate when the student receives a baccalaureate degree or marries.

Financial Aid

Section 513(b) provides that a court may require both parties and the child to complete the Free Application for Federal Student Aid (FAFSA) and other financial aid forms and to submit any form of that type prior to the designated submission deadline for the form.

Admissions Tests and Applications

College costs money well before your student sets foot on campus. Even if the court doesn’t order any other contributions, Section 513(b) provides that the court can require either or both parties to provide funds for the child so as to pay for:

  • the cost of up to 5 college applications
  • the cost of 2 standardized college entrance examinations, and
  • the cost of one standardized college entrance examination preparatory course.

Too often, parents delay filing a petition for college expenses until the bill for tuition and fees is upon them. If you wait until your child is packing up for the first day of school, you could get stuck with the bill for the first semester.

If you have questions or concerns regarding your child’s college costs after a divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

It’ll Take More Than Regret to Get Out of an Illinois Prenuptial Agreement

As the new year approaches, you may find yourself taking stock of the past twelve months – tallying your triumphs or setbacks, good fortune or regrets.

If one of your regrets over the past twelve months – or 12 years – was signing a prenuptial agreement that you no longer want to abide by, you’ll need more than just buyer’s remorse to get out of it.

Many couples, prior to their wedding day, decide to execute a prenuptial agreement to govern property division, spousal support, financial obligations, and other matters in the event that their marriage ends.

In a 2013 survey of 1,600 members of the American Academy of Matrimonial Lawyers, 63% of the responding attorneys reported an increase in prenups over the previous three years.

But when happily ever after fails to materialize and divorce is on the horizon, one party to the prenuptial agreement may no longer find the agreement to their liking and attempt to get around the agreements they made years or decades ago.

Unless they had been forced to sign the agreement or were misled as to their spouse’s financial condition and assets, avoiding the terms of a prenuptial agreement in Illinois is not an easy proposition.

Force, Fairness, and Failure to Disclose

The Illinois Uniform Premarital Agreement Act (IUPAA) governs prenups in the state and sets forth very specific and narrow bases for voiding such agreements.

As a preliminary matter, it should be noted if both spouses want to tear up or modify the agreement any time after execution, they are free to do so as long as the revocation or amendment is in writing and signed by both parties. (750 ILCS 10/6)

Absent an agreed upon revocation, however, the Section 7 of the IUPPA (750 ILCS 10/7) provides that a premarital agreement is not enforceable only if the party who wishes to avoid its terms proves that:

  • they did not execute the agreement voluntarily; or
  • the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
  • was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  • did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
  • did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

All of the foregoing relates back to the circumstances at the time the agreement was entered into, not today. Only if, at that time, one party was forced to sign the agreement under duress (“sign or else I won’t marry you” doesn’t count as “duress”), or the other party hid the ball and did not provide accurate information or “fair and reasonable disclosure” in regards to assets, debts, income, pensions, or other financial or personal matters that the other party did not or could not have known about on their own – and they did not waive the right to disclosure of those facts – may a judge refuse to enforce the agreement.

For that lack of disclosure to void the agreement, however, the agreement must be “unconscionable,” that is, excessively oppressive to one party in the context of all of the facts at issue. Whether a given prenuptial agreement is unconscionable is an issue decided by the court on a case by case basis.

Spousal Support Provisions May be Modified for “Undue Hardship”

One exception to the hard and fast rules set forth above relates to spousal support. If a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement “undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement,” a court may require the other party to provide support to the extent necessary to avoid such hardship. (750 ILCS 10/7(b)).

As the changes to Illinois divorce law that take effect January 1 eliminate all grounds for divorce other than “irreconcilable differences, your regret is enough to get you out of your marriage. But it’s not enough to get you out of your prenup.

If you have questions or concerns regarding any issues relating to divorce, including the enforceability of a prenuptial agreement you’ve signed, please give me a call at (312) 236-2433 or fill out my online form to arrange for a free initial consultation.

Illinois Divorce Law Won’t Look the Same Come 2016

This summer, Gov. Bruce Rauner put his signature on SB 57 (now Public Act 099-0090). This law modifies a number of sections of the Illinois Marriage and Dissolution of Marriage Act as well as other related statutes. The changes are effective as of January 1, 2016.

No One Ever is To Blame

One of the biggest changes is the elimination of all grounds for divorce other than “irreconcilable differences.”

As the law stands now, you can file for divorce alleging any number of grounds (such as adultery, physical cruelty, or mental cruelty) or you can simply assert that there are “irreconcilable differences” between you and your spouse, which is the legal term for “this just isn’t working out.”

However, if you filed on that latter “no-fault” basis, you would either have to live separate and apart for two years before you could seek a divorce or agree to a waiver, which would still require a six-month wait.

Under the revised law, the only basis for filing for divorce is “irreconcilable differences” and, if both parties agree, they can proceed with a divorce immediately (if they don’t agree, there is still a six month living separately requirement).

Allocation of “Parental Responsibilities” and “Parenting Time”

Current law about where children reside and how much time they spend with each parent is framed in terms of “custody” and “visitation.” The revised law throws those ideas out the window, drilling down to and specifically allocating all of the individual “parental responsibilities” involved in raising a child as well as allocating “parenting time.”

As has always been the case, “the best interests of the child” is the North Star on which all decisions relating to kids are made. In the new framework, the parties can either reach agreement on a “parenting plan” or the court “shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child.” Section 602.5(b). These “significant issues” include:

  • Health
  • Education
  • Religion
  • Extracurricular activities

As to allocation of “parenting time,” the court will look at many of the same factors it currently does in making “custody” determinations, including:

  • the amount of time each parent spent performing caretaking functions in the previous two years
  • any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child
  • the child’s needs
  • the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement
  • the willingness and ability of each parent to place the needs of the child ahead of his or her own needs

Relocation Restrictions

Parental relocation is often a sticky issue. Currently, a parent with residential custody can move anywhere within Illinois. Under the new law, some moves require notice to the other parent and ultimately approval by the court if the non-moving parent objects. Specifically, notice and/or approval is required if:

  • a parent with residential custody residing in Cook, DuPage, Kane, Lake, McHenry, and Will counties is seeking to move more than 25 miles from their current residence
  • a parent in any other Illinois county is seeking to move more than 50 miles from their current residence

Additionally, a parent with residential custody can move up to 25 miles away without agreement or approval even if the new residence is across the Illinois state line.

Call Me If You Have Questions

There are many other changes to Illinois divorce law that are part of this overhaul as well. If you are considering a divorce and have questions about how these changes to the law may impact your decision-making, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

 

Like It or Not, Your Social Media Posts Can Hurt Your Divorce Case

Social media use has exploded over the past decade. Facebook, Twitter and Instagram are currently the most popular sites for sharing the latest news, gossip and photos, and new social media websites are launching almost daily. Social media users share the most intimate details of their lives in countless status updates, including where they were, what they did, what they ate, who accompanied them and what they saw and heard. Strangers can learn a great deal of personal information about a Facebook or Twitter user simply by visiting his or her page.

So can divorce lawyers and soon-to-be-ex-spouses.

What You Post Can and Will Be Used Against You

According to the American Academy of Matrimonial Lawyers, more than 80 percent of divorce attorneys surveyed reported an exponential increase in the amount of evidence collected from social networking sites in the past few years. It’s not hard to understand why. Proof of infidelity, pictures or posts that seem to contradict claims as to assets or wealth, statements that may call into question a person’s fitness as a parent – everything that you say or that someone else may say about you online can and will be used against you.

NBC News surveyed numerous divorce and family law attorneys a few years back who shared some examples of ill-advised social media use that played a big role in the outcome of the proceedings, including:

  • Husband goes on Match.com and declares his single, childless status while seeking primary custody of said nonexistent children.
  • Husband denies anger management issues but posts on Facebook in his “write something about yourself” section: “If you have the balls to get in my face, I’ll kick your ass into submission.”
  • Father seeks custody of the kids, claiming (among other things) that his ex-wife never attends the events of their young ones. Subpoenaed evidence from the gaming site World of Warcraft tracks her there with her boyfriend at the precise time she was supposed to be out with the children. Mom loves Facebook’s Farmville, too, at all the wrong times.
  • Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.

In a recent Illinois case (In re Marriage of Miller), the court terminated maintenance payments to an ex-spouse after finding that she was cohabitating with someone else.  The court based its conclusion in large part on Facebook posts in which the ex-spouse and her new boyfriend clearly held themselves out as a couple and in which it was made clear that they were living together.

There is No Reasonable Expectation of Privacy on Facebook

If you think that your privacy settings will save you, think again. A number of courts have ruled that social media postings are not private, even when users adjust their privacy settings to shield their page from public view. Facebook and Twitter’s privacy policies warn users that the purpose of the sites is to share information, and that the public can view the posts on the sites.

Additionally, there have been cases where courts have ordered litigants to turn over social media passwords so that opposing counsel or prosecutors could gain access to the information, posts, and photos found there.

Deleting Won’t Help

Deleting potentially damaging posts while your divorce litigation is pending can also do more harm than good and get you in trouble with the court for spoliation of evidence. Last year, the New York State Bar Association as well as the Philadelphia Bar Association issued advisory opinions in which they stated that attorneys can advise clients to adjust their privacy settings and remove or delete content from their pages so long as the information is preserved such that it can be produced in litigation if requested.

Post Like EVERYBODY is Watching

Obviously, the best course of action for someone who is contemplating divorce or who is currently going through one is to avoid posting on social media altogether. For many people, however, this is simply unrealistic. When I advise clients about social media use during their divorce, I am reminded of the saying “dance like nobody’s watching.” When it comes to your online life, post like EVERYBODY – your spouse, their attorney, your kids, the judge – is watching.

If you have questions or concerns regarding any issues relating to divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a free initial consultation.

Who Should Pay for U? – College Costs After Divorce

Overjoyed or crushed? For high school seniors across the country at this time of year, acceptance or rejection letters from the colleges they wish to attend are determining which of those emotions they feel upon opening their mail. For parents of those seniors, the pride they feel about their child’s acceptance is likely accompanied by confusion and anxiety about the financial aid process and how they will help pay for four (or more) years of tuition that seems to increase at an exponential rate every year.

For divorced parents, a child heading off to college also means the end of child support and with it the question of who is going to foot the bill for their child’s college expenses. In Illinois, college costs are referred to as “post-majority expenses” and the question of who pays them depends on several factors.

Look to Your Judgment of Dissolution First

First, check your judgment of dissolution. If your marital settlement agreement, which divided all your property and set forth provisions regarding child custody and support, addressed post-majority expenses, they will be incorporated into the court’s final judgment. Illinois law gives family law courts the right to require one or both parents to pay a child’s higher education costs, even after the child graduates high school and turns 18.

The Illinois Marriage and Dissolution of Marriage Act

If your marital settlement agreement says nothing about college costs, and the judgment of dissolution is also silent on the issue, all hope is not lost. In Illinois, either parent can petition the court for college expenses, both before and after a child becomes a legal adult. More importantly, it doesn’t matter if your marital settlement agreement or final divorce decree failed to address the issue of post-majority expenses.

Section 513 of the Illinois Marriage and Dissolution of Marriage Act allows both moms and dads to ask the court to order the other parent to contribute to “the educational expenses of the child or children of the parties, whether of minor or majority age.” Such an application for educational expenses “may be made before or after the child has attained majority” and any order for the payment of college expenses terminates when the child receives a baccalaureate degree,” so no order will include the costs of graduate school.

In the majority of cases, the parent with the higher income is required to pay a larger percentage of the expenses, although courts occasionally order the child to kick in a portion of the bill.

Act Quickly to Receive the Support You Need

Too often, parents delay filing a petition for post-majority expenses until college fees are upon them. If you wait until your child is packing up for the first day of school, you could get stuck with the bill for the first semester.

If you have questions or concerns regarding your child’s college costs after a divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

Your Choice of a Lawyer Matters. Here are Four Qualities to Look For.

I meet with new clients and potential new clients on an almost daily basis. When I do, I know that the reason they are in my office is because they have important issues that need to be addressed; issues that can have a profound impact on their career, family, and future.

I also know that the decision as to which attorney they hire to assist them is one that they don’t, and shouldn’t, take lightly. There is no question that the quality and competence of an attorney can play a significant role in the outcome of a given matter, and how that attorney approaches his practice and relationship with clients can make the difference between peace of mind and constant worry.

Based on my experience, here are some qualities you should consider if you are in the process of looking for an attorney:

  • Knowledge of the Law. It goes without saying that your lawyer should know what he’s doing, and that includes keeping up to date on new developments and approaches. The law is constantly changing; new legislation, court decisions, rules, and guidelines come out all the time. It is crucial to hire a lawyer who not only understands the law as it is but who is aware and alert to the impact of changes which may take place.
  • Experience. So much of what happens in a legal matter is not based on things that can be found in books; knowing the nuances of both the law and the reality of practice is crucial to obtaining successful results. Look for a lawyer who knows their way around the courthouse, hearing room, or conference room. Look for a layer who knows how things work, and knows how things get done. Sound judgment and insight isn’t learned at a seminar. That is something that only comes from years of experience.
  • Communication. You no doubt have many questions about your situation, what may happen next, and what the plan should be going forward. Throughout your case, you’ll want to know that when questions and concerns come up, your attorney will be there, available and ready to answer and resolve them. You also want a lawyer who will actually listen to you and who will take the time to understand your needs and goals.
  • Empathy and Trust. When you meet with a lawyer, you are not there necessarily to discuss a case or a file; you are talking about your life. You want an understanding and compassionate lawyer who you can speak to about your concerns and issues and you want to feel as if they truly care and understand what is at stake. Choose an attorney who makes you comfortable, who is trustworthy and ethical, who you feel will truly expend all necessary efforts on your behalf, and who gives you a feeling of peace of mind every time you leave his office or hang up the phone after speaking with him or her.

The attorney-client relationship is a unique and important one, and the trust you place in your lawyer is something he or she should value and work every day to earn.

“How Much is This Going to Cost Me?” – Understanding How Attorney’s Fees Work

Either you or someone you know has likely found themselves in one of these situations at some point: you’re facing a health problem and want to see a doctor, or you know it’s been way too long since you’ve been to the dentist, or that leaky roof, broken air conditioner, or sputtering car is in desperate need of repair – but you put it off or never take care of one of these vital needs because you are worried about how much it’s going to cost.

The same thing happens when people are facing a problem or issue that requires the assistance of an attorney, often for the first time in their lives. But just like the foregoing problems won’t go away on their own, and likely will only get worse, ignoring a legal problem or failing to get help because you are worried about how much a lawyer will cost you may only end up costing you more in the long run. The reality is that a lot of folks don’t understand how attorneys charge for their work; sometimes, speaking with or even retaining an attorney to handle your matter won’t cost you anything at all.

Before you make a decision as to whether or not to reach out to a lawyer for help, it is important to understand the different kinds of attorney’s fee arrangements and which one may apply to your case. Here are the most common fee arrangements:

  • Initial Consultation. The first step in your relationship with a lawyer is usually your first meeting, or initial consultation, in which you discuss your specific problems, concerns, and questions with the lawyer and explore whether or not to retain the attorney to handle your matter. While some attorneys may charge you for that first meeting at a flat rate or an hourly rate (as discussed below), many attorneys, including myself, provide for free initial consultations regardless of whether or not you choose to hire the lawyer after your meeting.
  • Contingency Fee. When you see a lawyer in a TV commercial exclaim something like “You pay nothing unless we recover damages for you,” they are speaking about a contingency fee arrangement. Primarily used in personal injury, medical malpractice, Social Security Disability, and workers’ compensation matters, this arrangement means that if the attorney fails to recover any compensation for you either through trial or settlement, you are not obligated to pay any attorney’s fees (though you may be on the hook for out of pocket costs). If you do obtain a recovery, the attorney will take a percentage of that amount (most often 33⅓%, but sometimes higher or lower depending on the law or the agreement) as their fee and also reimburse themselves for any costs incurred during the case.
  • Flat Fee. For simpler matters like preparing a basic will, a standard bankruptcy matter, or uncontested divorces, an attorney may charge a flat fee, that is, a set amount up front for completing the requested work or for particular aspects of the matter.
  • Hourly Rate. This is perhaps the most common fee arrangement, and the one used most often in litigation matters. The attorney will charge you a dollar amount for every hour of time they work on your matter. How many hours your matter will require and how much per hour the attorney may charge for their work will depend on a number of factors, such as the complexity of the matter, the attorney’s experience, and the average rate in the community in which the attorney practices.
  • Retainer Fees. A “retainer” is essentially a deposit a client gives to an attorney at the beginning of the attorney-client relationship, with the funds being drawn upon to pay the attorney’s fees as the matter proceeds. These funds are usually deposited into a client trust account only to be applied to fees incurred for that specific client’s matter. At the conclusion of the case or relationship, any unused portion of the retainer will be returned to the client.

For those who are involved in a lawsuit, it is important to understand that most of the time (unless a contract, court order, or specific statute says otherwise), the prevailing party will not recover or recoup their attorney’s fees and costs from the losing party at the conclusion of the case.

Whatever the fee arrangement, it is important that you discuss and fully understand how the attorney will bill you for their time and their work, and that a written agreement be executed clearly explaining how the fee arrangement will work. Don’t simply ignore or put off any pressing legal matters; contact an attorney to see what arrangements can be made that will allow you to address your needs.

Consistency, Clarity, and Calculators: New Formula for Spousal Maintenance in Illinois

A new Illinois law effective on January 1st of this year establishes for the first time specific formulas for calculating the amount and duration of spousal maintenance payments after a divorce.

While child support payments in Illinois have long been determined by statutory factors and formulas, spousal maintenance awards have been subject to wild inconsistency, leading to similarly situated couples receiving vastly different outcomes and making it difficult for the individuals and their attorneys to predict and plan for the ultimate order that will govern their obligations.

The amendments to Sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act provide guidelines for judges in the event that they determine that a maintenance award is appropriate (based on the factors listed in Section 504(a)).

Calculating the Maintenance Amount

Notably, the new guidelines only apply where the combined gross income of the parties is less than $250,000 and no multiple family situation exists. For couples within that threshold, the new law provides that a maintenance award should equal 30 percent of the payor’s gross income, minus 20 percent of the payee’s gross income.

Example:

  • Husband’s annual gross income = $100,000 (30% = $30,000)
  • Wife’s annual gross income = $45,000 (20% = $9,000)
  • $30,000 – $9,000 = $21,000 in annual spousal maintenance to wife.

One nuance is that the new law provides that regardless of the result of the foregoing calculation, the resulting award cannot be greater than 40 percent of the parties’ combined gross income when added to the payee’s gross income. The higher the payor’s income is in relation to the payee’s, the less likely the 40-percent rule is to limit the payee’s award.

Duration of Maintenance

How long a spouse will be required to pay maintenance is based on the duration of the marriage.  A judge is to use the following formula in determining how long payments must continue:

  • Married 0 – 5 years = 20% of the duration of the marriage
  • Married 5 – 10 years = 40% of the duration of the marriage
  • Married 10 – 15 years = 60% of the duration of the marriage
  • Married 15 – 20 years = 80% of the duration of the marriage
  • 20 or more years = court has discretion to order either permanent maintenance or maintenance equal to the length of the marriage.

Under this formula, for example, a 5-year marriage would result in a 1-year maintenance obligation, while a 10-year marriage would result in 4 years of maintenance payments.

Judge May Deviate From Guidelines But Must Explain Why

While a judge is not required to follow the new guidelines, if they deviate from them they must specifically state in their findings the amount of maintenance or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.

In addition to the new formulas, the amendment to the law also:

  • Prevents a judge from ordering unallocated maintenance unless the parties agree to it;
  • Authorizes a judge to permanently bar maintenance for marriages of 10 years or fewer;
  • Specifies that judges must subtract maintenance payments from the payor’s income for purposes of calculating child support.

The hope is that the new law will make it easier to predict and determine spousal maintenance amounts and thus reduce the amount of both acrimony and uncertainty involved in finalizing such amounts during divorce proceedings.

If you have questions or concerns regarding the new law or spousal maintenance generally, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

This article has been prepared by the Law Offices of Louis R. Fine for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Mediation Can Be a Path to a Less Painful Divorce

There is simply no getting around that fact that the end of almost any marriage is a time fraught with intense emotions, tension, and conflict. Hurt feelings, worries about the future and the well-being of any children, and the practical issues of property division and support can create a perfect storm for lengthy, expensive, and destructive divorce litigation.

It doesn’t have to be that way.

Continue reading “Mediation Can Be a Path to a Less Painful Divorce”