When getting divorced in Illinois, in the absence of a prenuptial or post nuptial agreement, it is all but guaranteed that you and your spouse will need to go through the process of dividing your marital property. Likewise, if you have children, you will need to come to terms regarding custody and visitation, and you will need to determine an appropriate amount of child support in accordance with the Illinois child support guidelines.
Alimony is different. Unlike property division, child custody, and child support, divorcing spouses are not legally required to address alimony as part of the divorce process. However, an award of alimony will still be appropriate under various circumstances, and spouses contemplating divorce should carefully consider whether it makes sense to pursue an alimony award.
Seeking Alimony During a Divorce in Illinois
Four Types of Alimony in Illinois
The Illinois Marriage and Dissolution of Marriage Act (the “Act”) contains extensive provisions regarding the calculation and award of alimony during a divorce. The Act recently underwent extensive revisions with regard to alimony, and these revisions took effect on January 1, 2019. Under the revised law, there are four primary types of alimony that may be available in a divorce:
1. Temporary Alimony
Temporary alimony (also referred to as “temporary maintenance”) is financial support awarded to one spouse while the couple’s divorce is pending. Temporary alimony is intended to cover the recipient’s living expenses during the divorce and is generally awarded in cases where the spouses have decided to live separately. A spouse who needs temporary alimony will most likely want to include an appropriate request in his or her initial divorce filing, although it is possible to submit a request later during the divorce proceedings if necessary. A temporary alimony award ends once the divorce becomes final.
2. Fixed-Term Alimony
Fixed-term alimony is alimony awarded for a set duration. Typically, this form of alimony is awarded in order to allow the recipient to become financially self-supporting (in other states, this is commonly referred to as “rehabilitative alimony”). An award of fixed-term alimony will most-often be appropriate in circumstances where:
- The spouse seeking alimony gave up a career in order to assume childrearing or homemaking responsibilities during the marriage;
- The spouse seeking alimony forewent educational or training opportunities during the marriage in reliance on the other spouse’s income; and/or
- The spouse seeking alimony has limited earning capacity and must pursue education or training in order to maintain his or her accustomed standard of living once alimony payments end.
3. Reviewable Alimony
Reviewable alimony is similar to fixed-term alimony, but it is not awarded for a specific duration. Instead, the recipient’s right to continue receiving payments is subject to periodic court review, and is generally contingent upon the recipient making good-faith efforts to become self-supporting. Reviewable alimony may be appropriate in circumstances where the recipient does not have a clear path toward becoming self-supporting, or where childrearing responsibilities interfere with the recipient’s ability to pursue education or training without interruption.
4. Permanent Alimony (Indefinite Alimony)
As its name suggests, permanent alimony is financial support that is awarded for the remainder of the recipient’s lifetime. However, as there are still circumstances under which permanent alimony may be terminated, it is also (and perhaps more appropriately) referred to as indefinite alimony under the Act.
Under the Act, permanent or indefinite alimony is only available in divorces involving marriages 20 years in duration or longer. The law provides that, “[f]or a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.”
Factors for Determining the Duration and Amount of Alimony
In determining the type, duration and amount of alimony, the Illinois courts consider a variety of different factors. With regard to duration, the courts start with a set of statutory guidelines, although judges have the discretion to deviate from these guidelines if warranted by the particular circumstances of a divorce. The “guideline” durations for alimony in Illinois are:
- Marriage of less than 5 years: 0.20 percent of the duration of the marriage
- 5 years or more but less than 6 years: 0.24 percent
- 6 years or more but less than 7 years: 0.28 percent
- 7 years or more but less than 8 years: 0.32 percent
- 8 years or more but less than 9 years: 0.36 percent
- 9 years or more but less than 10 years: 0.40 percent
- 10 years or more but less than 11 years: 0.44 percent
- 11 years or more but less than 12 years: 0.48 percent
- 12 years or more but less than 13 years: 0.52 percent
- 13 years or more but less than 14 years: 0.56 percent
- 14 years or more but less than 15 years: 0.60 percent
- 15 years or more but less than 16 years: 0.64 percent
- 16 years or more but less than 17 years: 0.68 percent
- 17 years or more but less than 18 years: 0.72 percent
- 18 years or more but less than 19 years: 0.76 percent
- 19 years or more but less than 20 years: 0.80 percent
- 20 or more years: Indefinite or for a period equal to the length of the marriage
With regard to the amount of alimony, under the Act the Illinois courts (and divorcing spouses negotiating the terms of their divorce out of court) must examine factors including the spouses’ individual and combined net annual income, child support payment obligations, and alimony payment obligations from prior marriages (if any).
Tax Considerations for Alimony Negotiations
When negotiating alimony during an amicable or seeking an alimony award during divorce litigation, it is important to consider the income tax implications of alimony as well. All types of alimony are subject to the same income tax treatment, and the federal tax laws governing alimony payments are also changing for 2019. While alimony payors were entitled to deduct payments from their taxable income (and recipients were required to report payments as taxable income) under the prior law, under the new law effective for divorces finalized on or after January 1, 2019, the tax deduction for alimony is gone and recipients no longer need to pay income tax on the payments they receive.
Under the prior law, higher-earning spouses had a financial incentive to negotiate alimony as part of the divorce process, since any payments translated to direct deductions from their taxable income. However, now that this incentive is gone, spouses seeking to obtain temporary, fixed-term, reviewable, or permanent alimony must consider alternative strategies for negotiating favorable awards. If you are contemplating getting divorced in Illinois and would like more information, we encourage you to contact us for a free initial consultation.
Speak with Gurnee, IL Divorce Attorney Deanna J. Bowen
To learn more about the role alimony could play in your divorce, please call 847-623-4002 or contact us online. We will schedule your free initial consultation with Gurnee divorce attorney Deanna J. Bowen as soon as possible.