Evaluation of Spousal Support Under Current Law in Illinois
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Illinois lawmakers passed a modified version of spousal maintenance law in 2015. Many cases under the previous law are coming up for maintenance reviews or modifications as they take into consideration the new law, when applicable. Important information to understand the new law includes:
In order for an Illinois court to consider modifying an existing order for spousal support, it must be modifiable. In most situations, it is modifiable. When the maintenance award is modifiable, either party can file a petition at any time to modify the award.
Substantial Change in Circumstances
The person filing the petition must be able to show that there has been a substantial change in circumstances in order to have the order modified. This burden requires showing that there has been a significant change in the circumstances of one or both of the spouses since the original date that the order was entered or since the last modification. A substantial change in circumstances may include increased income of one or both spouses, retirement, new employment, loss of employment or disability.
Changing the Amount of Spousal Support
If the moving party successfully shows a substantial change in circumstances, the amount of support to be awarded depends on a coupe of factors. The first set of factors are those listed in the statute related to how spousal support is originally ordered. These factors include the income and property of each party, the needs of each party, the earning capacity of each party, any impairment for either party that affects his or her earning capacity, the amount of time it would take for the recipient spouse to receive adequate training or education to improve his or her earning capacity, the length of the marriage, the age, health, occupation, sources of income and liabilities of the party, the standard of living enjoyed during the marriage, the tax consequences of the property division during the divorce, the contribution of the spouses during the marriage and any other factor the court deems relevant.
The second set of factors the court considers are the modification factors, which include the future earning capacity of each spouse, the length of time it would take to increase earning capacity, the age and health of each spouse, the financial need of each spouse and the current income of each spouse.
Maintenance Reviewable by Court Order
Courts can also review an order for modification if reviewable language is included in the order. The order ma state that maintenance should be reviewed every five years, on a specific date or at a certain interval. When this language is included in the order, there is no need to show a substantial change in circumstances. The court will consider whether the amount of maintenance should remain the same, increase, decrease or be terminated. The spousal maintenance order may also contain language that requires the recipient spouse to take steps to become self-sufficient. The court may consider whether the spouse has complied with such requirements.
When there is language that allows the court to review the order, the spouse who wants the review should carefully check for language regarding how to activate this clause. He or she may be required to initiate the process a certain number of days or weeks from the anniversary date of the spousal maintenance order. He or she may need to file a petition and provide notice to the other spouse.
New Law or Old Law
Caselaw has held that the new statute will not be applied retroactively. Therefore, orders that were made before January 1, 2015 will be assessed based on the old statute. The new formula is used on cases decided after this date. For older awards, the court looks at the circumstances and facts present when the original maintenance award was issued and whether any changes have occurred. For example, if the maintenance award was made so that the two spousesí incomes could be the same, the review would also seek to achieve this goal.
However, even though the new maintenance formula is not retroactive, the court can still consider the new maintenance formula to determine if the amount of maintenance is considered fair and reasonable under current law.
Contact an Illinois Family Law Lawyer for Assistance
If you would like to modify your spousal support award, it is important to understand the law and your rights. An experienced Illinois family law lawyer can discuss your legal options and provide representation in this proceeding.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.