Monday, January 19, 2015

How Maintenance and Child Support Will Change

Effective January 1, 2015, Illinois maintenance and child support laws have significantly changed.   Formerly a trial judge had broad discretion to determine proper maintenance. Now maintenance is determined using specific predetermined guidelines for specified time periods. Under the new law, the court shall first determine whether a maintenance award is appropriate, and if so, the court is to order maintenance in accordance with the guidelines set out in the statute. Alternatively, the court may reject the guidelines after considering all of the relevant factors, set out in the statute. Child support is to be calculated after the maintenance is determined. While Judges still have discretion, their options are more limited now.

Here’s how the new guidelines work. The guidelines are based on the parties “gross income” which is defined as “all income from all sources.”  This includes wage income, investment income, business distributions and various other types of income. When the combined gross income of the parties is less than $250,000 and no multiple family situations exists, the amount of maintenance is calculated by taking 30% of the payer’s gross income, minus 20% of the payee’s gross income.  The amount calculated under the guidelines may not result in the recipient receiving an amount in excess of 40% of the combined gross income of the parties.

 Duration of the Maintenance
The duration of the maintenance shall be calculated by multiplying the length of the marriage by the ratios set out in the statute:  0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80).  For example, take a marriage of 8 years. The multiple for a marriage lasting between 5-10 years is .40. Thus, 8 X .40 = 3.2 years of maintenance. For a marriage of 20 years or more, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of marriage.

Other provisions
The new law provides that the court shall make specific findings of fact regarding the following: (1) the court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor set forth in the statute, and (2) if the court deviates from otherwise applicable maintenance guidelines, it shall state in its findings the amount of maintenance or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines. 
The statute further provides that unless the parties otherwise agree, the court may not order unallocated maintenance and child support in any dissolution judgment or in any post-dissolution order. The court may however, in its discretion, order unallocated maintenance and child support in any pre-dissolution temporary order. 
Finally, the statute provides that if a court grants maintenance for a fixed period at the conclusion of a case, which has been commenced before the tenth anniversary of the marriage, the court may also designate a specific termination date. Maintenance is barred thereafter.  This is a material change to the former law that disallowed a judge, under any circumstances, from providing that maintenance  automatically terminates on a given date.

Child support 
The child support statute has also been amended. Now, child support is calculated after deducting any sums paid as maintenance, “Obligations pursuant to a court order for maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable.” Under the former statute, child support was determined independent of maintenance. Now, in addition to all of the other deductions provided for in the statute, maintenance actually paid is deducted, and that net sum is applied to the child support percentages.  This feature of the new statute reduces child support for parents also receiving maintenance. 

There is tremendous uncertainty in light of the dramatic change in the law. It will take years before there is any meaningful consensus on how the new statute will operate in practice. While the goal of the statute was to eliminate subjectivity by applying a predetermined formula, confusion will likely ensue from the radical departure of our former law. The law usually evolves slowly and incrementally. This seismic change will force the law to respond quickly and decisively to clarify how the new law should be applied.