Deviating From Guideline Maintenance in Illinois
Before January 1, 2015, Illinois courts calculated maintenance awards relying on a list of fourteen factors within section 504 of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/504 (West 2020). Since then, Illinois courts rely on specific Statutory guidelines to calculate maintenance awards, if they find that the application of such guidelines is appropriate. 750 ILCS 5/504 (b-1) (1).
The Fourteen Factors
First, the courts must determine whether an award of maintenance is appropriate in the first place. To determine that, the court must consider fourteen relevant factors:
the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;
the needs of each party
The realistic present and future earning capacity of each part;
Any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
Any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;
The time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;
The effect of any parental responsibility arrangements and its effect on a party's ability to seek or maintain employment;
The standard of living established during the marriage;
The duration of the marriage;
Sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties; the age, health, station, occupation, amount and
The tax subsequences to each party;
contributions and services by the party seeking Maintenace to the education, training, career or career potential, or license of the other spouse;
any valid agreement of the parties; and
any other factor that the court expressly finds to be just and equitable.
Guideline v. Non-Guideline Maintenance
Once the Court determines that an award of maintenance is appropriate and fair, it must determine how much maintenance is appropriate and fair. At this point, an Illinois Court must choose between “Guideline” and “Non-Guideline” means of calculating maintenance. 750 ILCS 5/504(b-1). In fact, the Statute was amended in 2015 for this very reason: to provide the courts with concrete and uniform means of establishing how much maintenance should be ordered and in what circumstances.
A guideline maintenance calculation stems from section (b-1) (1) of the Statute, which specifies how the court should calculate the amount and duration of maintenance payments. 750 ILCS 5/504 (b-1) (1). The court must choose a guideline maintenance model if:
(1) the combined gross annual income of both parties is below $500,000.00;
(2) the person who is ordered to pay maintenance does not already have to pay child support or maintenance (or both) to someone from a past relationship;
(3) the application of guideline maintenance does not result in the maintenance payor having to spend more than 50% of their net income on maintenance and child support; and
(4) the guideline maintenance award does not result in the recipient of the award receiving an amount that is more than 40% of the combined gross income of the parties.
750 ILCS 5/504 (b-1) (1).
The exception to this is when the court finds that the application of the guidelines would be inappropriate. Thus, if the parties’ circumstances do not result in any of the above-mentioned scenarios, or if the Court finds it inappropriate to award guideline maintenance for any other reason, then the court may award Non-Guideline maintenance. Specifically, section (b-1) (2) of the Statute states that “any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.” 750 ILCS 5/504 (b-1) (2). In other words, “a trial court may deviate from statutory maintenance guidelines based on a consideration of the same factors used to determine whether a maintenance award is appropriate in the first place.” In re Marriage of Billington, 2022 IL App (2d) 210370-U, ¶ 33. For clarity, these are the same fourteen factors that are mentioned in the first paragraph.
What gives the court enough discretion to use any other reason in deciding that an application of guideline maintenance is inappropriate is the fourteenth factor (“any other factor that the court expressly finds to be just and equitable”). 750 ILCS 5/504(a) (14). Essentially, the court may find any reason that it deems just and equitable to decide whether it should ignore the guidelines set forth in section (b-1) (1) of the Statute and manually determine how much and for how long one spouse must pay maintenance to the other (thus, choosing non-guideline maintenance), so long as the court expresses this reason. In fact, section (b-2) forces the court to state in writing its reasoning for not awarding guideline maintenance, the amount of maintenance or duration that would have been required of the payor if the court used the guidelines set forth in section (b-1)(1), its reasoning for deviating from the section (b-1) (1) guidelines, and other considerations. 750 ILCS 5/504 (b-2).
Thus, even though the Statute “was designed to provide courts with guidelines to limit inconsistencies in maintenance awards across the state, which, in the past, varied widely in the amounts and durations of maintenance ordered for people with similar incomes and similar periods of marriage,” the court still has wide discretion in deciding whether maintenance should be awarded in accordance with the section (b-1) (1) guidelines due to the broad scope of the fourteenth factor. In re Marriage of Cole, 2016 IL App (5th) 150224, 58 N.E.3d 1286. In theory, an Illinois court may deviate from guideline maintenance for any reason. In practice, Illinois courts tend to stick to guideline maintenance unless the reason for deviating is crystal clear. Such reasons are usually in line with those mentioned in paragraph four, where the combined gross annual income of both parties is above $500,000.00, or the person who is ordered to pay maintenance was already ordered to pay child support or maintenance (or both) in a past relationship. In addition, if the application of guideline maintenance results in the maintenance payor having to spend more than 50% of their net income on maintenance and child support, or if the guideline maintenance award results in the recipient of the award receiving an amount that is more than 40% of the combined gross income of the parties, then these would also be crystal clear reasons for the court to ignore guideline maintenance.
How Much Maintenance
If the court deviates from guideline calculations of maintenance, then it must consider the same fourteen factors that are necessary to determine whether maintenance should be awarded in the first place. 750 ILCS 5/504 (b-1) (2). Thus, the above-mentioned fourteen factors are considered to determine whether maintenance should be awarded in the first place, whether non-guideline maintenance should be awarded instead of guideline maintenance, and how much non-guideline maintenance should be awarded.
The first ever case deciding a maintenance issue in light of the amended Statute is the case of In re Marriage of Cole. In re Marriage of Cole, 2016 IL App (5th) 150224, 58 N.E.3d 1286. In that case, the Fifth District of an Illinois Appellate Court found that the trial court did not abuse its discretion by calculating a maintenance award to the wife in the amount of $2,088 per month permanently (as compared to $1328.49 per month for 36 years or permanent, which would have been the amount under the statutory guidelines). Id. Although the issue on appeal was that this award was made prior to the enforcement of the Statute, and therefore prior to the existence of any guidelines to calculating maintenance (where it held that the substantive statute does not apply retroactively), the appellate court considered the maintenance award in light of the Statute and its guidelines and still found the amount of the award appropriate. Specifically, the Appellate Court found that consideration of the duration of the marriage (8th factor), the gross monthly incomes of the parties (1st factor), the various health conditions of both parties (9th factor), and the standard of living established during the marriage (7th factor) justified an order of maintenance that was higher than it would have been if it were calculated using section (b-1)(1) guidelines. The duration of the marriage was 30 years, the husband's gross monthly income was $4951 while the wife's gross monthly income was $734 (deriving entirely from social security benefits), both parties had cancer (the husband, age 67, had throat cancer and the wife, age 63, had tumors in her leg, foot-related issues, and a thyroid condition), and the wife had been unemployed for more than 10 years at that time, with little earning capacity.
Another example of an Illinois court’s deviation from statutory guidelines is In re Marriage of Billington. In re Marriage of Billington, 2022 IL App (2d) 210370-U, ¶ 16. In that case, the court recommended an upward deviation from the statutory amount in recognition of the wife’s age, her needs, her lack of education past high school, and total lack of employment. The court also took note of the wife’s health, her being a breast cancer survivor and suffering from ventricular tachycardia. The court accounted for the wife’s health status in finding that the wife could not become self-supporting with employment income. Guideline maintenance in that case would have been $4,768.17 per month for 5 years, but the court deviated from the guidelines and awarded the wife maintenance of $5,000 per month for 5 years.
In conclusion, while the Statute was amended to create concrete and uniform maintenance allocation in Illinois divorce cases, it also left room for the court’s discretion to deviate from strict adherence to maintenance allocation guidelines. Because an Illinois court can choose to find maintenance allocation in accordance with section (b-1) (1) guidelines inappropriate, and in so determining it may consider “any [other] factor that the court expressly finds to be just and equitable,” the court maintains wide discretion to decide to deviate from guideline maintenance awards.