How is Maintenance/Spousal Support Determined When the Statutory Guidelines Don’t Apply to High Wage Earners?

 Posted on January 16, 2023 in Divorce

wheaton divorce lawyerIn 2016, the Illinois legislature attempted to create uniformity behind maintenance awards (formerly known as alimony) in dissolution of marriage proceedings by establishing a statutory formula for its calculation.  The theory behind the change to the law was that by instituting the guidelines there would be less variation from judge to judge and county to county than there had been prior to 2016.  The maintenance guideline formula is contained in the Illinois Marriage and Dissolution of Marriage Act, Section 504, and provides for both a guideline amount and duration for spousal support, as well as a percentage cap based upon the spouses combined incomes (the recipient shall receive no more than 40% of the combined total net income).  The current statute (revised most recently in 2019) sets support based on the net incomes of each party (compared to being based upon gross income pre-2019) and the duration is based upon a multiplying factor considering the length of the marriage through the date a petition for divorce is filed.  Specifically, the award is 33 1/3% of the payor’s net income less 25% of the payee’s net income (subject to the same cap from the 2016 version).  Although the court can deviate from these guidelines when they apply, a deviation is rare and there typically needs to be a court-approved basis for doing so; such as one party having a greater capacity to earn income than evidenced on paper or a party having substantial nonmarital assets like an inheritance.  

However, the guidelines set forth in the current statute do not apply in all circumstances.  Specifically, couples with a combined gross income in excess of $500,000 are not subject to the guidelines.  So, if one party earns $450,000 per year and the other earns $80,000 per year, or one party is a stay-at-home parent and the other earns in excess of $1,000,000 per year, the court is not required to follow the guideline formula and has discretion to establish maintenance awards and set the duration of an award, presuming the court first determines that a maintenance award is appropriate under the circumstances.  

Does that mean the court will allocate a greater or smaller percentage than what the guideline formula would have resulted in? Will they use a formula at all?  The statute states as follows: “Any non-guidelines award of maintenance shall be made after the court's consideration of all relevant factors set forth in subsection (a) of this Section.”

Subsection (a) refers to the following factors (in summary):

  1. Income/property of each party (including nonmarital property) 

  2. Needs of the parties 

  3. Earning capacity 

  4. Impairment to earning capacity of recipient 

  5. Impairment to earning capacity of payor

  6. Time necessary to rehabilitate and whether the recipient can support himself through employment 

  7. Standard of living established during the marriage 

  8. Duration of the marriage 

  9. Age, health and employability of each party 

  10. All sources of income including retirement and disability 

  11. Tax consequences 

  12. Contributions to the payor spouse toward education or career by the recipient spouse

  13. Agreements between the parties 

  14. Any other factor the court seems just 

When setting maintenance outside of the guidelines, judges generally rely heavily on the needs of the parties and the standard of living established during the marriage.  To do this, they will look to the parties’ financial affidavits and supporting documents regarding their expenses.  The court will consider what the parties previously expended for both regular monthly living expenses such as their mortgage, taxes, utilities, vehicle costs, etc. as well as what their personal expenses have been (grooming, clothing, dining out, entertainment, etc.). The court will likely also look to projected future expenses which might be new, such as health insurance costs. Essentially, needs are not limited to life’s necessities (food, clothing, shelter) but instead can include even luxury expenses that have been established throughout the duration of the marriage, such as cleaning services, vacations, and even cosmetic work like Botox.    

The other issue the court will likely rely heavily on is the employability of the recipient spouse.  In situations where a prospective maintenance recipient has been out of the work force for a substantial period of time, the court is more likely to award larger amounts of maintenance and less likely to require them to seek lucrative employment than if they are educated and have some work experience.  Things like the age of the recipient, educational background, employment history, and whether or not they were the primary caretaker for the children will be considered in determining maintenance awards outside of the guidelines.  

Some courts will still consider the statutory guidelines for maintenance even though they are not required to do so.  For long-term marriages where the income disparity is substantial and the recipient’s earning capacity is low, the court might award maintenance in an amount higher than the guidelines.  In other cases, where the payor’s income is substantial, courts have found that amounts less than the guidelines are appropriate because it results in a windfall to the recipient (i.e. in excess of their needs and standard of living).  In either scenario, although the guidelines do not apply, the courts may still reference them in some fashion in determining their own support calculation.  

The bottom line is that it is case-by-case and in high income situations, where guidelines do not apply, it is imperative for skilled and experienced attorneys to thoroughly review discovery as well as determine whether experts are necessary to address vocational issues or complete standard of living analyses.  McSwain Nagle Giese & Rapp, P.C. has extensive experience in this area and would welcome the opportunity to discuss the circumstances of your case at a free 30 minute initial consultation.  Contact us today at 630-407-1200 to schedule time to speak with an attorney.


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