Tuesday, June 11, 2013

Maintenance Madness

With the exception of children's issues, no topic is more controversial in divorce litigation than maintenance. Known as alimony or spousal support in other states, maintenance in Illinois is designed to assist an unemployed spouse achieve financial parity with the primary wage earning spouse. I see both sides of the dispute.

Payers (usually men) cannot believe that they are often ordered to pay approximately half of their wages to support a former spouse who may not be exercising reasonable efforts to become employed. And the payment often continues until retirement (and sometimes beyond)! On the other side of the debate, those eligible for maintenance (usually women) are frequently displaced homemakers who have spent decades raising children while their spouse advanced in his career. Shouldn't she be able to share in the fruits of success now that the children have left home?

Some have tried to cope with the debate by suggesting concrete guidelines or term limits. Illinois already has in place provisions that automatically ends maintenance if one "cohabits on a continuing conjugal basis." In other words, it may if a recipient enters a new serious long term relationship and other conditions are met.

I personally am not a fan of strict rules here. In that respect, my thoughts run counter to trends nationally. I think we need less hard and fast rules rather than more. Every family situation is different. If maintenance is designed to recognize the lost economic opportunities resulting from a homemaker caring for children, should she be automatically penalized by having a new relationship? Or, when appropriate, should we disallow a judge from ordering  just a couple of years of maintenance? (Illinois law currently disallows a court from entering a term definite amount of maintenance...it must be left open ended).

The law constantly pushes and pulls between the predictability of definite rules and the opportunities to do the right thing, which judicial discretion allows. Here I believe the latter is preferable.

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