The statute directs the court to take a look at a number of different items as it considers the amount of money that will be given to the spouse that’s going to receive maintenance by the paying spouse. In Illinois, we have a new provision that’s recently gone into effect. It changes the factors and the characterization a little bit, but at least for the initial inquiry, the court is going to look at the amount of income and the amount of property that’s been assigned to each party, and that includes not only marital property but non-marital property as well.
The court has to consider the needs of each party; the realistic present and future earning capacity that each side has – that means their employment ability and other ability to generate revenue from other sources; any impairment that might exist on either side – for example, we see that sometimes if a spouse has been primarily responsible for housekeeping duties and has been the homemaker, they may not have had the ability to obtain education, training, and experience to allow them to earn substantial sums in the future, and that’s a factor that the court is very interested in; and the amount of time that it might take for someone to acquire appropriate education, training, or skills or to find a job. The amount of maintenance that somebody could receive could adjust in the future based on the expectation of the court as to the amount of time that it takes to do that.
One thing that the court’s always very interested in is, how long is this marriage? How long have these parties been together? The court is certainly going to look at a situation differently, if it’s one of those cases where maybe folks got married and it lasted for a year or two and they got into problems early on, compared to those long-term situations. Long-term in Illinois is beginning to be defined as something 20 years and longer in duration.
The judge is going to consider the age of the parties, their health, their station in life, and their occupation, sources of income, vocational skills, employability, and liability. Those are going to be of interest to the court. The tax consequences of whatever property they received, the Judge has to consider that. If property has been apportioned to one spouse that carries with it significant tax consequences, we need to find the money to be able to pay that tax that sometimes is received in the form of maintenance. That’s another factor that the court has to consider.
There are a lot of different threshold questions that the Court has to resolve for itself in the process of determining an appropriate maintenance award, and those are probably the primary factors that the Court is going to consider.
Chuck Roberts is a family lawyer at Momkus McCluskey Roberts, LLC, one of the largest law firms in DuPage County, Illinois.
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