Starting on January 1, 2015, the Illinois maintenance statute changed to provide a formula that calculates a party’s maintenance obligation to the other party in a divorce.  The change was meant to provide more certainty with respect to how much maintenance someone will be paying and for how long. However, one thing that did not change the fact that maintenance will not be awarded and can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510. What does that mean you ask? The answer is not as straightforward as you might imagine and can lead to uncertain results.

Assume John married Annie in 2008 and recently decided that he wants to get a divorce because he believes that Annie has taken up with a lover in the past couple of months. On November 1, 2014, she moved out of the marital residence and into the home of her long-time friend, Al. However, before she left, she asked John if he would help her get her own apartment to live in while the divorce was pending. John refused to give her a dime and she has nowhere else to go.  John believes that Annie may be having an affair with Al because he saw a picture of him kissing her on the cheek on Facebook and he’s always suspected that she had feelings for him. Annie, however, denies that she is in a romantic relationship with Al, has only lived in his house for about a month, spends a few nights each week with Al, sleeps in a separate room than Al, does not contribute to bills, and does not have any joint accounts with him.  Annie has, however, gone on a weekend trip to Lake Geneva with Al, and has spent Thanksgiving with him. With these set of facts, would Annie be entitled to maintenance from John?

Under Illinois law, before awarding a party maintenance in divorce proceedings, the court must consider factors listed in Section 504 Illinois Marriage and Dissolution Act providing for initial maintenance awards in addition to those listed in Section 510, providing for modification and termination of maintenance awards. This means that even if you are still married if you believe your spouse may have moved in with a significant other, you should tell your attorney so that they can determine whether a basis to negate any maintenance award exists.  After an initial maintenance award is made, however, the court will then consider only the factors listed in Section 510 to determine whether the award should terminate.

Does your Judgment of Dissolution of Marriage reference an annual or quarterly true up calculation for support? Are you unclear on what that means and confused on how it is calculated? It is common for you to feel overwhelmed and uncertain about your obligations or what you are entitled to from your ex-spouse when these clauses are incorporated into your Judgment.

In many cases, temporary or permanent support orders for both maintenance (formerly known as alimony) and child support, include provisions for what’s known as a “true-up.” This includes final divorce decrees, either after the court’s ruling or more commonly via a Marital Settlement Agreement. A true-up is designed to capture income for support purposes that was not factored into the monthly support obligation. It also ensures that all income for statutory purposes is considered and equitable support amounts are being paid. 

A true-up is often appropriate in situations where the payor’s income is more complicated than standard base pay. If both parties have only a base salary or base hourly wage and set hours (their incomes do not vary week to week or month to month), a true-up is not necessary, as the amount of support paid should be consistent from month to month and match up with the year-end numbers. However, if a payor receives a varying bonus or bonuses throughout the year, is entitled to commission pay, receives other incentive compensation, has overtime or fluctuating hours, or has a side job earning other income, then a true-up is often beneficial to both parties. For example, if support were set on a prior year’s total income where a payor had many commissions, and there was no true-up, the payee would have been substantially underpaid and vice versa. True ups solve this problem by ensuring the correct amount of support is paid.