The Duration of Maintenance and Terminating Maintenance After Retirement

The duration of maintenance is governed by section 504(b-1) of the Illinois Marriage and Dissolution of Marriage Act (the Act). 750 ILCS 5/504(b-1). If an Illinois circuit court finds that a maintenance award is appropriate, section 504 of the Act provides that the court shall order guideline maintenance in agreement with “paragraph (1) or non-guideline maintenance in accordance with paragraph (2) of this subsection (b-1).” Id. If the duration of maintenance is determined to fall under the guidelines, subsection (b-1)(1)(B) provides: “the duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80).” Id. § 504(b-1)(1)(B). However, for a marriage exceeding 20 or more years, the court through its discretion, “shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” Id.

In the instance where the guidelines are not appropriate, subsection (b-1)(2) provides 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.” Id. § 504(b-1)(2). Subsection (a) sets forth these factors, such as the parties’ individual financial positions, earning capacity, parental responsibilities, and duration of marriage. Id. §§ 504(a)(1-14). It should be noted that while the court must consider all relevant factors, it does not need to give them equal weight. In re Marriage of Kestner-Pennell and Pennell, 2024 IL App (4th) 230611-U, 2024 WL 2863614, ¶100 (Jun 5, 2024). Moreover, according to subsection (b-2)(1)-(3), “in each case involving the issue of maintenance, the court shall make specific findings of fact, as follows: (1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section; (2) if the court deviates from applicable guidelines under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and (3) the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” Id. § 504(b-2)(1)-(3). The statutory language provides that the decision whether to follow the guidelines when calculating duration is a matter of discretion. Id. § 504(b-1)(1), (2). An Illinois appellate court will not disturb the decision to award maintenance absent an abuse of the circuit court's discretion. Pennell, 2024 IL App (4th) 230611-U, ¶102. Thus, “a trial court abuses its discretion only where no reasonable person would take the view adopted by the trial court.” Id. Moreover, the appellant seeking reversal, “bears the burden of proving an abuse of discretion.” Id.  

Maintenance may be modified or terminated by a circuit court pursuant to section 510(a–5) of the Act. 750 ILCS 5/510(a–5). However, termination and modification will only occur upon a showing of a “substantial change in circumstances.” Id. Under section 510(a–5), a “substantial change in circumstances” means that either the “needs of the spouse receiving maintenance or the ability of the other spouse to pay that maintenance has changed.” Goldner v. Goldner, 2023 IL App (1st) 211272-U, 2023 WL 8711763, ¶19 (Dec. 18, 2023). A “substantial change of circumstances,” in itself, does not require modification or termination of maintenance. In re marriage of Bibber. Instead, a finding of a “substantial change in circumstances” is only an introduction to consideration of the factors outlined in sections 504(a) and 510(a-5). Id. Section 510(a–5) of the Act sets forth these specific factors to consider in determining a motion to modify maintenance including: ”(1) any change in the employment status of either party and whether the change has been made in good faith; (2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate; (3) any impairment of the present and future earning capacity of either party; (4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties; (5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage; (6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property; (7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought; (8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and (9) any other factor that the court expressly finds to be just and equitable.”  750 ILCS 5/510(a–5). Section 510(c-5) of the Act provides: “in an adjudicated case, the court shall make specific factual findings as to the reason for the modification as well as the amount, nature, and duration of the modified maintenance award.” 750 ILCS 5/510(c–5).

The party that is seeking modification or termination bears the burden of proving that a substantial change has occurred. Goldner, IL App (1st) 211272-U, 2023, ¶20. The circuit court's decision to modify maintenance will not be disturbed unless there is a clear abuse of discretion. Id. An abuse of discretion occurs “when the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” Id. The abuse of discretion standard is “highly deferential to the trial court.” Id. When determining whether or by how much to modify maintenance, the circuit court weighs the same factors it considers when it orders the original maintenance award, which are found in section 504(a) of the Act. Id. ¶20. An increase in the modification of maintenance is merited if the circuit court finds that the party seeking maintenance lacks adequate “property to provide for their reasonable needs or is otherwise without sufficient income.” Id. In the instance whether a party may rely on their retirement as a change in circumstances to justify the modification of maintenance, it depends upon the circumstances of each individual case. Goldner, IL App (1st) 211272-U, 2023, ¶24. However, the relevant factors the circuit court may rely upon include “his age, health, motives and timing of retirement, ability to pay maintenance after retirement, and the former spouse's ability to provide for herself.” Id.

The party that is seeking modification or termination bears the burden of proving that a substantial change has occurred. Goldner, IL App (1st) 211272-U, 2023, ¶20. The circuit court's decision to modify maintenance will not be disturbed unless there is a clear abuse of discretion. Id. An abuse of discretion occurs “when the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” Id. The abuse of discretion standard is “highly deferential to the trial court.” Id. When determining whether or by how much to modify maintenance, the circuit court weighs the same factors it considers when it orders the original maintenance award, which are found in section 504(a) of the Act. Id. ¶20. An increase in the modification of maintenance is merited if the circuit court finds that the party seeking maintenance lacks adequate “property to provide for their reasonable needs or is otherwise without sufficient income.” Id. In the instance whether a party may rely on their retirement as a change in circumstances to justify the modification of maintenance, it depends upon the circumstances of each individual case. Goldner, IL App (1st) 211272-U, 2023, ¶24. However, the relevant factors the circuit court may rely upon include “his age, health, motives and timing of retirement, ability to pay maintenance after retirement, and the former spouse's ability to provide for herself.” Id.