Maintenance

Maintenance

___In General
   Maintenance has been defined as follows: it is for an indefinite period of time and usually for an indefinite total sum; it is based upon the payor’s income and the needs of the recipient determined from the standpoint of the manner in which they have been accustomed to live; it is modifiable after decree when the recipient’s needs increase or decrease, or when the payor’s ability to pay increases or decreases; it usually terminate upon the death of the payor, although by agreement payments may be made a charge upon the payor’s estate after they become due; it is never a charge on an estate in advance of the due date because it is not, prior to that time, vested; payments are not based upon any consideration but are based upon the common-law duty of support.  In re Marquardt

­­­___Ability to Pay
   Where respondent presented evidence of outstanding debts, neither the tax liability nor the debt owed to a hospital was responsible for respondent’s failure to pay maintenance since he had made no payments towards those debts by the time of the hearing, thus, the record supported the trial court’s finding that the respondent had the ability to pay maintenance during the period in question.  In re Ingram

___Appeal
   The appeal of an award of maintenance is barred where the defendant’s acceptance of the benefits of the divorce decree which would distinctly disadvantage the plaintiff upon any redetermination of those rights.  In re Lawver

___Bankruptcy
   Although this section terminates the obligation to pay maintenance upon the marriage of the party receiving maintenance, the fact that an award stated that the obligation would not terminate upon remarriage of the debtor’s wife, did not dictate that the award was not maintenance with regard to determining the discharge ability in bankruptcy of the debtor’s obligation.  Renzulli v. Renzulli

___Characterization
   Maintenance agreement was an award of periodic maintenance for a fixed period rather than maintenance in gross and subject to modification or termination, where it was denominated as “transitional maintenance” and for a fixed rather than indefinite duration.  In re Harris
   An award of maintenance may be modified regardless of whether it is characterized as permanent or temporary as long as it does not explicitly preclude such modification; this also applies to situations in which a party seeks to terminate (or abate) an award of maintenance.  In re Krupp
   Under prior law, the fact that payments were for a sum certain to be paid over a specified time (five years) would have resulted in the characterization of the payments as in the nature of a property settlement, but this section allows maintenance for a limited time and sum, and the factors of definiteness in amount and time are not conclusive.  In re Marquardt

___Credit
   Former husband was not entitled to a credit toward his maintenance obligation for social security benefits received by his former wife by virtue of contributions made by the husband.  In re Schrimpf

___Defined
   The word “alimony” in former section 18 of the Divorce Act (see now this section), is synonymous with the word “maintenance” used in subsection (a) of this section.  Pierce v. Pierce

___Employment Secured
   Even though respondent had obtained employment, the court properly continued maintenance, since she did not have her own pension and would never earn as much as petitioner.  In re Connors

___Equitable
   Just as the court is without authority, after a husband’s death, to award maintenance to the wife, it is without authority, after the husband’s death, to award equitable maintenance pending appeal.  Stacke. V. Bates

___Factors Considered
   In determining whether maintenance should be modified, the court properly considered that respondent no long owned a home and had been awarded only 15% of petitioner’s pension.  In re Connors
   It is not only just and equitable to consider the factors listed in subsection (c), but also it is statutorily required when awarding maintenance pursuant to 750 ILCS 5/504.  In re Toole
   The factors to be considered in making an award of maintenance under subsection (b) of 750 ILCS 5/504 are applicable to modification proceedings under subsection (a) of this section.  In re Martin
   In determining whether to modify maintenance and to what degree, the trial court is to consider the same factors as those for making the initial award: the financial resources of the party seeking maintenance, including marital property apportioned to her; the standard of living established during the marriage; the age and the physical and emotional condition of both parties; the ability of the spouse seeking maintenance to meet her needs independently; and the ability of the other spouse to pay.  In re Zeman

___Failure to Pay
   The noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt of court, and once the prima facie showing is made, the burden of proof shifts to the defendant to show by definite and explicit evidence that he is unable to pay.  In re Dall
   A defense to contempt, applicable only in the most extreme cases, exists where the failure of a person to obey an order to pay maintenance is due to poverty, insolvency, or other misfortune, unless that inability to pay is the result of a wrongful or illegal act, or where a defendant can show that he neither has money now with which he can pay nor has disposed wrongfully of money or assets with which he might have paid.  In re Dall
   If it is established that a party has failed to comply with a divorce decree in paying maintenance, prima facie evidence of contempt is established and the burden shifts to the alleged contemnor to show the conduct was not willful.  Taapken v. Taapken
   If the husband establishes that he is unable to pay the maintenance, he should not be found guilty of contempt.  Taapken v. Taapken

___Failure to Seek Independence
   The recipient of maintenance is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future; the failure to make good faith efforts to pendent in the future; the failure to make good faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to subsection (a) of this section.  In re Martin

___Failure to Seek Independence
   The recipient of maintenance is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future; the failure to make good faith efforts to pendent in the future; the failure to make good faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to subsection (a) of this section.  In re Martin

___Financial Independence
   Where former wife had completed the necessary training and received certification as a respiratory therapist and had begun making inquiries into available employment opportunities when she was involved in an automobile accident, injuring her back, the trial court was not required to compel her to actively seek employment when she would be unable to fulfill the job requirements.  In re Hucker
   A spouse who receives maintenance is under an affirmative obligation to seek appropriate training and skills in order to reach the goal of becoming financially independent; a failure to make good faith efforts toward this goal, following a reasonable time frame during which this objective should have been accomplished, may be grounds for modification of maintenance.  In re Hucker
   Where one spouse was found to be in good health at the time the judgment of dissolution was entered, and the record five years later did not reflect a substantial or extraordinary change in that spouse’s circumstances, but revealed that the other spouse had suffered a heart attack and remained hospitalized in a coma for a period of time, and nothing indicated that the spouse seeking maintenance was completely handicapped or suffered from any terminal illness or other physical impairment absent a showing of extraordinary circumstances, that spouse still had a continuing duty to become financially independent.  In re Jones
   Where the record showed that wife had the ability to support herself and that her financial transactions had increased her difficulties in meeting her expenses, there was no abuse of discretion in the trial court’s decision not to increase maintenance.  Faris v. Faris
   The failure of the spouse that was awarded maintenance to make good-faith efforts to achieve goal of financial independence following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification.  In re Mittra

___Grant Held Erroneous
   Grant of permanent alimony to wife in addition to husband’s interest in the marital residence was held erroneous.  Demos v. Demos

___In Gross
   Subsection (c) of this section does not authorize the court to award maintenance in gross after the death of the payor spouse.  Stacke v. Bates
   Maintenance in gross in a non-modifiable sum certain to be received by the former spouse regardless of any change of circumstances; where indefinite period was fixed and monthly payments were not a sum certain, such an award could not be considered maintenance in gross.  In re Arvin
   Where the marital separation agreement executed by petitioner and respondent prescribed that the respondent pay a lump sum over a definite number of installments, the intent of the parties, as determined from the written marital separation agreement, was to create an award of maintenance in gross in a lump sum payable over a definite number of installments.  In re Hildrebrand
   Maintenance in gross awarded the petitioner under 750 ILCS 5/504(b) was not subject to termination upon remarriage pursuant to subsection (b) of this section.  In re Davis

___Job Search
   Extension of maintenance constituted an abuse of discretion in light of the court’s finding that respondent’s job searching efforts were insufficient.  In re Koenigsknecht

___Modification

___ ___Allowed
   Reduction of income was the type of substantial change in circumstances contemplated by subsection (a) and thus it was error for the trial court to decline to modify in maintenance award.  In re Izzo
   Because the terms of the judgment did not incorporate the terms of a settlement agreement pursuant to 75 ILCS 5/502 (f), the court had power to modify the maintenance award.  In re Bryant
   Modification of maintenance was appropriate where the husband presented evidence that he had chosen to cease working upon the advice of his physician and following heart pains significant enough to cause his hospitalization and his business required work seven days a week.  In re Coloumbo
   Although the ancillary order limited termination of maintenance to the conditions therefore in this section, it made no express reference to any conditions precluding modification as to the amount of maintenance and, therefore, did not preclude modification.  In re Scott
   Modification of maintenance provisions of a 1975 settlement agreement was allowed using the standards of this section, even though enacted after 1975.  Ingrassia v. Ingrassia.
   Where an option concerning disposition of a home required respondent to pay monthly rent to petitioner, the award was a form of maintenance which the court could not allow where petitioner was cohabiting with another.  In re Combs

___ ___Burden of Proof
   The party seeking modification of maintenance has the burden of demonstrating that a substantial change of circumstances has occurred.  In re Krupp
   In an action for the modification of maintenance, proof of need and proof of a change in circumstances are not separate and distinct issues; the need of the recipient spouse is one of the circumstances the court is to consider in determining the original award of maintenance.  Similarly, a change in the need of the recipient spouse would be a circumstance to be considered in determining whether an award should be modified, and the burden of establishing such a change in the need rests with the movant.  In re Krupp

___ ___Factors Considered
   The same factors considered under 750 ILCS 5/504(b)(2) in making an initial award of maintenance are used in determining whether and to what degree a maintenance award shall be modified under subsection (a) of this section.  Rice v. Rice
   If a source of income, no matter how certain the probability it will continue, should cease, this matter then becomes an appropriate fact to support a petition to modify an order of maintenance.  In re Mittra
   In determining whether and to what degree a maintenance award shall be modified, the circuit court is to consider the same factors to be assessed in making the initial award.  In re Chalkley

___ ___Not allowed
   Trial court’s denial of a reduction or termination of former husband’s maintenance was not an abuse of discretion, notwithstanding husband’s retirement and increased medical costs because of his present wife’s ill health; evidence established that the former husband had substantial assets from which to pay his present wife’s medical bills and the maintenance award.  In re Schrimpf
   The evidence was clear that the parties intended monthly payments to be something more than simple maintenance: where respondent conveyed away substantive marital property interests, in return for conveying her interest in farmland and farm equipment, she received only interest income from the trust and the monthly payments, and the payments were non-modifiable monthly payments until her death, rather than maintenance terminable by the provisions of this section.  In re Scherrick
   Petitioner was earning $4 per hour, a sum, only slightly above the minimum wage, while respondent had a career position with the State of Illinois, petitioner had no medical insurance and was afflicted with serious medical problems and housing difficulties; therefore, there was not basis to disturb the trial court’s order awarding periodic permanent maintenance to petitioner.  In re Popovich
   The court did not abuse its discretion in failing to reduce the amount of maintenance ordered, there was conflicting evidence regarding petitioners’ ability to pay the amount awarded, and the court chose to believe there was no substantial change in circumstances, because the petitioner had lied at trial about certain assets, and the court clearly could question petitioners’ credibility, denied.  In re Demond

___ ___Not allowed
   Where, due to illness, respondent’s need for maintenance had increased substantially since the entry of the divorce decree, and where petitioner’s inability to pay maintenance was largely the result of indebtedness incurred by him, denial of modification of award was proper.  Geittmann v. Geittmann

___ ___Standard
   The discretionary standard for modification of maintenance found in subsection (a) of this section is essentially unchanged from its applications under the former Divorce Act.  In re McGowan

___Need of Support
   A shown need for support cannot be controlling and in itself sufficient to defeat a petition to terminate maintenance when all other factors demonstrate an ongoing, conjugal relationship to exist.  In re Frasco

___Paramour
   A divorced spouse should not be required to support the other spouse’s paramour.  Hall v. Hall

___Party Agreement
   Maintenance agreements may be modified or terminated under circumstances stated in statutory provisions, unless the parties’ intent is clearly manifested in such agreement to limit or preclude such judicial modification or termination.  In re Scott
   If the language of the agreement does not expressly preclude or limit modification of its terms, it is error to hold the maintenance non-modifiable.  In re Scott
   The parties may agree that reductions or termination of maintenance can only occur under specific circumstances, regardless of “good faith”, and that their agreement controls.  In re Mateja
   The mandate of this section, as it applies to future maintenance, cannot be avoided by agreement between the parties.  Ihle v. Ihle
   The only limitations placed on the parties’ freedom to fashion their own property and maintenance agreements are that the end product to be incorporated into the divorce decree may not be so unjust as to be unconscionable and the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.  Simmons v. Simmons

___Past Due Installments
   Since a court has no power to modify past due installments of maintenance a petition for modification or termination would only apply to payments owed subsequent to the date of the filing of the petition.  In re Kessler

___Permanent
   An award of permanent maintenance in a dissolution proceeding containing no provision for modification review was deemed an abuse of discretion by the trial judge.  In re Girrulat
   Where an agreement characterized the maintenance as “permanent,” this term may also be used simply to distinguish permanent maintenance from temporary maintenance awarded during the pendency of a dissolution action; such as when the agreement was too vague to establish that the parties intended to contravene the general policy of Illinois and provide for continuing maintenance payments after the former wife’s remarriage.  In re Jensen
   There is no language in this section which prohibits modification of a permanent maintenance award, and such awards are therefore modifiable.  In re Arvin

___Post Death
   750 ILCS 5/413(a) and 750 ILCS 5/504(c) do not create a substantive right to post-death maintenance pending appeal; they apply when a right to maintenance already exists and therefore, must be read in conjunction with the prohibition of subsection (c) of this section.  Stacke v. Bates

___Reduction
   Where respondent presented evidence that his income had decreased by 70%, the trial court did not abuse its discretion in reducing petitioner’s temporary maintenance by approximately 66%.  In re Borg

___Reduction for Property Charge
   The trial court did not exceed its authority where it reduced a husband’s monthly maintenance obligation and placed a charge of $300 per month against the husband’s real property because the “charge” against the property was more in the nature of a deferred obligation and not a lien.  Biondolino v. Biondolino

___Rehabilitative
   Because petitioner cohabited on a resident, continuing conjugal basis with another party and did not subsequently reconcile, respondents obligation to pay all forms of maintenance, including rehabilitative maintenance, had been terminated.  In re Toole

___Reinstatement
   The reinstatement of maintenance obligations where a party has cohabited on a conjugal basis, but is no long cohabiting on a conjugal basis, is not provided for by statue.  In re Toole

___Retroactive Modification
   Where a decree of separate maintenance between the parties in a case decided prior to the adoption of the Marriage and Dissolution of Marriage Act (see now this section), provided that the defendant pay his wife $15,500 per year for alimony and support, and where on appeal the cause was remanded with directions to reduce the alimony to $11,500 a year, the reduction was made effective as of the date of the separate maintenance decree such that from the date of the original award to the date of the reviewing court’s mandate, the defendant paid a larger amount of alimony than he rightfully should have paid, the increment to the plaintiff was an advantage which could not justly be retained and the trial court corrected the overpayment by retroactively adjusting the alimony to the date of the erroneous decree.  Richheimer v. Richheimer

___Review

___ ___Allowed
   An award of maintenance is always reviewable and modifiable, if the requisite requirements are met, under subsection (a).  In re Jones

___ ___Change in Circumstances
   While receiving maintenance, petitioner has an affirmative obligation to seek appropriate employment and to make a good-faith effort to become financially independent and should petitioner not fulfill her obligations, subsection (a) of this section directs that the maintenance award may be modified upon respondent’s showing of substantial change in circumstances; thus, while the order did not precluded from seeking review during the 10-year period if there is a substantial change in circumstances.  In re Cheger

___ ___Discretion
   Whether the terms of a dissolution judgment providing for maintenance should be modified or terminated rests within the sound discretion of the trial court, and its determination will not be disturbed on review unless the record shows an abuse of that discretion.  In re Whiting

___Standard
   The trial court’s decision to terminate maintenance will not be disturbed on review unless it is contrary to the manifest weight of the evidence.  In re Johnson

___Settlement Agreement
   Where parties’ agreement clearly and unambiguously limited the duration of maintenance by stating that it would not extend beyond the earliest of three specific events, the expiration of 78 months, and the wife’s death or remarriage, and the agreement precluded a modification extending wife’s right to maintenance beyond that time, although the parties’ agreement was sufficiently clear to make the duration of payments non-modifiable, because the agreement incorporated into the judgment of dissolution did not clearly preclude modification of the amounts of maintenance and other amounts payable with the time limitations prescribed by the parties’ agreement.  Tucker v. Tucker
   Post-dissolution modification of maintenance is judicially precluded only where a settlement agreement clearly and unambiguously expresses the parties’ intent to make maintenance non-modifiable.  Tucker v. Tucker

___Termination

___ ___In General
   Each case for termination of maintenance must rest on its own facts, given the unique nature of personal relationship.  In re Johnson

___ ___Allowed
   Where the petitioner had come from being unemployed with no outside income at the time of the dissolution, to having completed her college education in accounting, and employment with earnings of $20,000 per year, respondent’s petition for termination of maintenance payments should have been granted because the statutory goal of rehabilitative maintenance had been achieved.  In re Henzler

___Termination

___ ___Effective date
   Termination of maintenance may not be effected prior to the date a petitioner received notice a petition had been filed.  In re Frasco
   A determination of the effective date of termination is a matter within the court’s discretionary authority.  In re Frasco
   The termination of maintenance on the basis of the payee’s cohabitation with another on a resident, continuing conjugal basis became effective when the petition for termination was filed.  In re Stanley

___ ___Factors Considered
   While the trial court can consider the financial interaction between the interested parties in a petition for termination of maintenance, that factor is not controlling; if the court finds the required cohabitating relationship exists based on its assessment of the totality of the circumstances, it need not make any specific finding as to the maintenance recipient’s financial need.  In re Herrin
   An important consideration in evaluating payment of maintenance to an ex-spouse cohabiting with another individual, divorced from the morality of the conduct, is whether the cohabitation has materially affected the recipient spouse’s need for support because she either received support from her co-resident or used maintenance moneys to support him.  In re Olson

___ ___Indefinite Time
   Since this section of the Marriage and Dissolution of Marriage Act permits either spouse to modify or terminate the maintenance award, should circumstances change, an award for an indefinite period of time is not necessarily an interminable award.  In re Stegbauer

___ ___Not Allowed
   The trial court properly abated, rather than terminated, maintenance to the wife, where she received $3.7 million in a medical malpractice action, given the uncertainty of her future medical expenses and insurability.  In re Bothe
   Where the relationship between ex-wife and male friend was of a relatively short duration, although they did have sexual relations, she would see him usually only every other month, they had not taken vacations together, owned no real estate or personal property together, and they had no joint bank accounts, the evidence showed she did not do his laundry and did not use maintenance to buy anything for him, he did not discipline the children and his principal involvement was playing chess with them, although there was sufficient evidence presented to grant the petition to terminate, there also was sufficient evidence to deny the petition; in such circumstances, that ex-wife and male friend were not engaged in a resident, continuing, conjugal relationship was not against the manifest weight of the evidence.  In re Lambdin
   The trial court did not abuse its discretion in denying husband’s petition to terminate maintenance based on ex-wife’s failure to seek appropriate training or education to become financially independent; ex-wife only had a general equivalency diploma and was custodian of two minor children.  Moreover, she had a hearing problem which required her to read lips and caused a speech impediment and finally, only three years had passed since the dissolution of the marriage.  In re Lambdin
   Where the wife was able to secure employment but there was evidence in the record indicating that she had held her new job for only two years and that even with this new source of income, her resources were insufficient to provide for her reasonable needs, where the prospects of this situation improving were speculative at best, especially considering that the wife suffered from a physical condition which apparently rendered her incontinent, and where by contrast, the record indicated that the husband continued to prosper and that he could still comfortably provide the maintenance payments specified in the dissolution judgment, there was no maintenance payments should not be terminated.  In re Whiting
   There was no abuse of discretion in refusing to terminate maintenance payments where the record indicated that the respondent suffered some significant financial misfortune, but respondent failed to present sufficient evidence of a substantial change in circumstances to warrant a termination of maintenance payments.  In re Ingram
   Where respondent received custody of the children at the same time he was ordered to pay $100 a week in maintenance to allow the petitioner to rehabilitate herself through schooling, and he did not show a substantial change in his circumstances following the maintenance order, the trial judge did not abuse his discretion in denying termination of maintenance.  In re Scordo
   Husband’s obligation to pay wife a maintenance sum of $500 per month under the couple’s settlement agreement survived his death.  Bartlett v. Illinois Nat’l Bank

___ ___Settlement Agreement
   Where the parties to a settlement agreement intend to limit the automatic termination of certain terms, they must do so in clear language.  In re Jensen
   Where the parties entered an agreement which provided for the termination of maintenance payments only upon wife’s death or remarriage or at the end of ten years, the parties did not intend to conclude that cohabitation was a condition for termination of maintenance under the settlement agreement.  In re Tucker
   As of the effective date of this Act, parties were allowed to enter into written separation agreements in accordance with 750 ILCS 5/502 which extended maintenance beyond the terminating events of subsection (b) of this section.  In re Mass
   The trial court did not abuse its discretion by failing to terminate maintenance by former husband to former wife completely where the parties had agreed to the amount in a contractual agreement prior to the divorce.  Biondolino v. Biondolino

___ ___Significant Misfortune
   A showing that some significant misfortune has taken place does not always mean maintenance will be terminated.  In re Dunseth

___Upheld
   Where wife had a high school education, four minor children, was permanently disabled, and had received no formal training in job skills and where husband’s unemployment was not involuntary, award of $1,000 per month maintenance was not an abuse of discretion.  In re Morse

Medical Expenses
   Where petitioner testified at length as to the manifestations of his son’s emotional problems, treatment by various doctors and counselors, and the remedial educational program in which he had been placed, where the petitioner also testified as to the medical expenses incurred when another son suffered an ankle injury, and where respondent did not call any witnesses to dispute the nature of these expenses, nor did cross-examination of the petitioner establish any serious dispute as to the nature of the expenses, the petitioner established that the medical expenses were extraordinary in nature and therefore modification of respondent’s obligation to pay child support was granted.  In re Morrisroe
   Modification of child support that required the defendant pay medical and dental but not optical expenses for the children was not a breach of discretion.  Bisset v. Blisset
   Trial court properly ordered husband to pay $5,094.35 in medical expenses where it was provided in the original divorce decree that husband was to pay extraordinary medical expenses.  Goldberg v. Goldberg
   Order allowing wife attorney’s fees and costs for defending the appeal was in error where although the order found that wife was unemployed and had no income of her own, the record disclosed that she held, with her second husband, two joint bank accounts with funds totaling $2,700, and owned a home in joint tenancy, and the order made no finding as to the husband’s ability to pay.  Berg v. Berg

Back to 750 ILCS 5/510 Home Page