How are courts applying Illinois' newly enacted, one-of-kind spousal maintenance formula? Here's one lawyer's experience.

"Maintenance in Illinois divorce litigation"

By Van-Lear Eckert

April 2015 General Practice, Solo & Small Firm newsletter

Illinois' first-in-the-nation spousal maintenance formula took effect January 1, and lawyers are beginning to report from the trenches about how judges are applying it. One such account appears in the April General Practice, Solo & Small Firm newsletter, where Van-Lear Eckert reported that his client, a non-earning spouse in a long-term marriage, received a substantial award.

Before the formula was enacted, judges had wide latitude to determine maintenance. Many lawyers complained about the inconsistency and unpredictability of awards, which led to the effort - promoted by the ISBA Family Law Section Council, among other advocates - to create a statutory formula that would make rulings more uniform.

In cases where the formula applies, a maintenance award would equal 30 percent of the payor's gross income minus 20 percent of the payee's gross income if any, not to exceed 40 percent of the parties' combined gross income when added to the payee's gross.

A separate formula based on the length of the marriage establishes the duration of the maintenance award. For example, for a marriage that lasted five years, the maintenance award would continue for 20 percent of that span, or one year. On the other end of the continuum, maintenance could be permanent for a couple that has been married 20 years or more.

One-earner couple, 20-plus year marriage

Here's how the math worked in one of Eckert's recent cases, "a 23-year marriage in which the wife did not work and therefore had no monthly gross income," he wrote.

"The husband had monthly gross income of $6,970 from his current full-time job and $3,902 per month from his military pension for a total monthly gross income of $10,872. Wife was awarded 50 percent of the marital portion of husband's military pension, which, based upon 172 months married while serving in the military divided by the total months of the marriage (276 months) multiplied by 50 percent resulted in wife receiving 31 percent of the monthly pension or $1,210 per month as the wife's marital portion of husband's military retirement."

The $1,210 was deducted from husband's $10,872 monthly gross income to produce a new monthly gross of $9,662, Eckert wrote. "This amount was then multiplied by .30 pursuant to the new maintenance statute for a total monthly maintenance obligation of $2,898. Based upon the length of the marriage and the fact that the wife did not work outside of the home during the marriage, the judge ordered permanent maintenance in the amount of $2,898 per month, which is in addition to the $1,210 that wife also receives monthly from husband's military pension." Thus, her total monthly gross income after the divorce is $4,108, or $49,296 per year, while the husband will keep $6,764 per month, or $81,168 per annum.

What about a two-earner couple?

That's how the court applied the formula in a long-term (20-plus-year) marriage in which the husband worked outside the home and the wife did not. But what if they wife had also been an income earner?

In that case, the "husband's maintenance requirement would have been calculated by taking 30% of [his] monthly gross income minus 20 percent of the wife's monthly gross income," Eckert wrote. He also noted that judges have discretion to vary from the formula amount.

"While the new maintenance statute defines the amount and duration of maintenance in a dissolution proceeding, the court may still exercise discretion as long as the court states in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines."