Maintenance & Attorney Fee Considerations in the Illinois Marriage and Dissolution of Marriage Act (IMDMA)

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides guidelines for courts to determine property allocation for dissolution of marriage suits, including whether maintenance and/or payment of a party’s attorney fees is appropriate. Deviation from these guidelines requires a showing by the party requesting the shift to produce evidence that compelling reasons exist that justify the deviation. In re Marriage of Katsap, 214 N.E.3d 945 (2d Dist. 2022). Maintenance is appropriate if the spouse lacks sufficient property to provide for reasonable needs, is unable to self-support through appropriate employment, or is otherwise without sufficient income. In re Marriage of Durante, 559 N.E.2d 56 (1 Dist. 1990).

Maintenance, Age & Degenerative Cognitive Conditions. The IMDMA outlines several factors for courts to consider when making maintenance determinations. Among these are the age and health of the receiving spouse. 750 Ill. Comp. Stat. Ann. 5/504(a)(9) (LexisNexis 2024). Further, there are several provisions designed for the court to assess the present and future earning capacity of each party. Id.

Courts in Illinois have assessed mental capacity when making maintenance decisions. In In re Marriage of Watson, the second district court assessed a wife’s mental health issues and physical disabilities to consider her future employment prospects. In re Marriage of Watson, 206 N.E.3d 241 (2d Dist. 2022). As she had no other income and she was relatively young (48 years old), the court upheld the trial court’s judgement for reviewable maintenance upon findings that the disabilities were permanent. Id. at 248.

In re Marriage of Watson is distinguishable from situations involving older couples. As retirees are not likely to be able to return to work and cognitive conditions are not likely to improve, a court may award permanent maintenance when comparing the financials and health situation of a retired spouse to one still working. In addition, the second circuit in In re Marriage of Watson considered the possibility of her mental health improving with treatment. Id. at 246.

Maintenance & Parties’ Incomes. The IMDMA provides a framework for courts to calculate maintenance after date of dissolution when (1) the combined income of the spouses is below five hundred thousand dollars ($500,000) and (2) payor has no obligation to pay child support, maintenance, or both from a prior relationship. 750 Ill. Comp. Stat. Ann. 5/504(b-1)(1). If neither party has those obligations, we may proceed with calculations for an estimate. The amount shall be calculated by taking 33 1/3 of the payor’s annual net income minus 25 of the payee’s annual net income. There are online calculators that may assist in assessing this number, however courts may always diverge from statutory guidelines if there are other circumstances at play.

Effect of Non-Marital Assets on Maintenance. A court may consider each party’s non marital assets when making maintenance determinations. 750 Ill. Comp. Stat. 5/504(a)(1) (LexisNexis 2024). While this is an important factor for the court, it does not necessarily preclude a maintenance award. In re Marriage of Tietz, 605 N.E.2d 670 (4t Dist. 1992). If the party asking for maintenance can show that their non-marital assets are both insufficient for their needs and is inconsistent with the standard of living they were accustomed to during his marriage, then he may still be awarded maintenance. In re Marriage of Thornton, 412 N.E.2d 1336 (1st Dist. 1980).

The First District Court of Appeals upheld a finding that a wife with limited income and assets who was accustomed to a high standard of living during her marriage was entitled to maintenance. Id. at 1346. The wife was young, able-bodied, and had income and non-marital assets to her name, but the husband was valued much more. Id. at 1340. The court determined that the husband could afford to pay maintenance so she could continue living the same standard she was accustomed to during the marriage. Id. at 1345. Therefore, the husband was ordered to pay maintenance in the sum of their standard of living minus her assets. Id. at 1346. While this case is useful for understanding maintenance calculations, there are many other factors courts may consider when making maintenance calculations, such as their age and future earning capacity. 750 Ill. Comp. Stat. Ann. 5/504(a) (LexisNexis 2024).

Dissipation. Dissipation is the use of marital funds for a spouse’s own benefit, or for a purpose unrelated to the marriage, occurring at a time when the relationship began undergoing an irreconcilable breakdown. In re Marriage of Holthaus, 387 Ill.App.3d 367 (1st Dist. 2008). The IMDMA defines income earned by one of the spouses subsequent to the marriage as “marital property.” 750 Ill. Comp. Stat. 5/503(a) (LexisNexis 2024).

Courts have consistently held that personal trips taken by one party without their spouse do not constitute a purpose related to the marriage. In re Marriage of Partyka, 511 N.E.2d 676 (1st Dist. 1987); In re Marriage of Williamson, 997 N.E.2d 1019 (5th Dist. 2011) (in which the court also held that a spouse paying for their adult child's vacation with marital assets also constituted dissipation). This is distinguishable from a spouse spending their own non-marital assets on a trip. Spending one’s income is considered spending marital assets, so in a divorce, parties must be conscious of how they are spending that money.

Attorney’s Fees. A court may order a party to pay their former spouse’s attorney’s fees in cases with significant financial disparities. 750 Ill. Comp. Stat. Ann. 5/508(a) (LexisNexis 2024). Courts include maintenance when assessing income, so we don’t have an exact number yet for this purpose, but it is likely that even with that addition, a court may still find him unable to pay his attorney’s fees.

In In re Marriage of Hill, the Second District court affirmed a holding requiring a husband to pay his wife’s attorney’s fees due to their extremely disparate incomes. In re Marriage of Hill, 48 N.E.3d 1100 (2d Dist. 2015). The court determined that the wife earned thirty-five thousand dollars ($35,000) annually while her former husband made over $800,000. Id. at 1109. As this is a clear income disparity that demonstrated the husband’s ability to pay and the wife’s inability to pay her attorney’s fees, therefore he was ordered to pay those along with maintenance and child support.