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The New Maintenance Law: Divorce in Cook County, IL

The New Maintenance Law: Divorce in Cook County, IL

Maintenance Part III, New Maintenance Law: Divorce in Cook County April 15, 2015...   It is now time to discuss the workings of the new maintenance law which is in effect and covers all divorce filers in Cook County such as Palatine, Arlington Heights and Rolling Meadows, Illinois. Under the amended Section 504 which is entitled Maintenance the court may award to a spouse maintenance in any action for dissolution of marriage, legal separation, or declaration of invalidity of marriage. The importance of this statute makes it clear that in a declaration of invalidity of marriage the judge may still award maintenance. A declaration of invalidity of marriage is formerly known as an annulment of marriage. In an invalidity of marriage situation the court determines that the parties were never married. Thus, in an invalidity of marriage the court can determine that the parties were never married and still award maintenance to one spouse or other. Most would think this result is incongruous, because if you were never married how can you be ordered to pay maintenance.

The statute also makes clear in subsection (a) that maintenance may be awarded without regard to marital misconduct. This is important because a spouse who “cheats” on the other spouse can still be awarded maintenance. In my experience that is very hard for the aggrieved payor spouse to handle. Yet, depending on the circumstances, that is a possible outcome. This, however, is in conformity with Illinois’ stance as a no fault jurisdiction. Another important item to remember as concerns the amended maintenance statute is that the maintenance may be paid from the property of the other spouse. Normally, maintenance is paid from the earnings of a spouse. In this situation, a spouse with property, usually financial accounts, can be ordered to pay the other spouse from those accounts if earnings are lacking.

After all of the above preliminaries have been dealt with the court is then charged with determining whether a maintenance award is appropriate. Thus the court will on a cursory basis consider once again

a) the incomes of the parties, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
b) the needs of the parties;
c) the present and future earning capacity of each party;
d) any impairment of the present and future earning capacity of the party seeking maintenance . . .
e) the time necessary to enable the party seeking maintenance to acquire appropriate education, training etc.
f) the standard of living established during the marriage;
g) the duration of the marriage among other factors

In the next blog we will look at the amount and duration of maintenance.

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