What happens to divorce maintenance when one spouse experiences a loss of future earning capacity?
The Maintenance statute of the Illinois Marriage and Dissolution of Marriage Act Section 510 was amended so as to take affect this January 1, 2016. Maintenance formerly known as alimony is the right of one spouse to receive income from the other spouse. This blog, which shall be published in several parts, seeks to create an understanding as to how the new modification of maintenance statute will operate and what it means to an obligor. This law affects all divorces happening in Arlington Heights, Rolling Meadows and Palatine, Illinois. These blogs will provide crucial information concerning the necessary act of modifying a maintenance obligation that has previously been set..
B. MODFIABLE MAINTENANCE
Section 750 ILCS 5/510 (a-5) provides several factors for the courts to consider when determining if a modification of maintenance request is proper or not. The third factor is:
(3)“any impairment of the present and future earning capacity of either party;”
This factor sets for the possibility of the continuation of maintenance should the receiver of maintenance or the payor of maintenance have any impairment in their future earning capacity. This factor can arise in a reviewable maintenance situation where the spouse who is receiving maintenance gets diagnosed with a debilitating illness or has an accident that will make their ability to secure future employment impossible. For example, if a couple obtains a divorce and the wife is receiving maintenance for five years and the maintenance will be reviewed by the court during that five year period and also during that five year period, wife is diagnosed with multiple sclerosis and will not be able to work as a result. Wife would then file a motion to extend the maintenance provisions beyond the initial five year period. Wife would most likely succeed and turn the five year reviewable maintenance into a permanent maintenance situation. This is because the court can look at the Wife’s earning capacity and continue the maintenance provisions indefinitely into the future. Likewise, if Husband suffers a stroke and can no longer work at his pre-stroke earning capacity, he may also be able to terminate his maintenance and or reduce the maintenance obligation that he is required to pay.
Palatine and Arlington Heights Divorce Lawyer James Kelly specializes in all aspects of family law, divorce and bankruptcy in the Chicago area, including Lake, McHenry, DuPage, Will, Kane and Cook County. With over 20 years of experience, his clients commend him on how well he listens to their situation and thoughtfully constructs a legal plan that best fits their individual needs. Learn more about how James Kelly can help you - contact James Kelly for a free consultation!