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What you need to know about Divorce

D. Maintenance and Child Support

Maintenance, formerly known as alimony, is financial support provided by one (ex-) spouse to the other. Spousal maintenance is normally deductible by the paying spouse and taxable to the recipient spouse if certain criteria are met. Either spouse may seek maintenance. It may be initially granted on a temporary basis during the pendency of a divorce and for a determined or indeterminate period of time following the divorce or until the dependent spouse no longer requires it or remarries, which is first to occur.

In 1977, reflecting the social changes of the women's movement, no-fault divorce initially did away with the practice of permanent alimony. Replacing it was rehabilitative maintenance, based on the premise that any spouse who is given help for a time toward training themself can be independent and self-supporting.

In 1993, a revision of the 1977 legislation re-empowered the court to award permanent maintenance if it was deemed reasonable after the court evaluated various factors.

Factors that a court evaluates in setting spousal maintenance include the income and property of each party, including marital property apportioned and non-marital property assigned to the parties; the needs of each party; the present and future earning capacity of each party; any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training and employment or career opportunities due to the marriage; the time necessary to enable the party seeking maintenance to acquire appropriate education, training and employment, the standard of living established during the marriage; the duration of the marriage, the age and the physical and emotional condition of both parties; the tax consequences of the property division upon the parties' respective economic circumstances; and contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse.

Maintenance may be either temporary or permanent. If a party agrees to give up a claim for maintenance, it may not be renewed at a later date unless the right to do so has been reserved in the Judgment for Dissolution of Marriage.

Maintenance can only be modified (increased, decreased or abated) by a court, and past due payments of maintenance are not dischargeable in bankruptcy.

Today, if a woman has been a full-time homemaker in a long-term marriage, she may be awarded maintenance for an extended period of time if she can prove "helplessness." Such helplessness may be proven by either a woman or man if they have never worked outside of the home, have no marketable skills or is physically or mentally disabled and/or is elderly. They may also be entitled to permanent maintenance if their job does not enable them to maintain the same lifestyle they had when they were married.

It is not uncommon for the primary wage earner to withhold financial contribution to the financially dependent spouse during the pendency of a divorce. Typically, a skilled attorney will petition the court early-on for a temporary order which obligates the primary wage earner to make regular payments to the dependent spouse until the case's resolution by settlement or trial.

ii) Child Support: If you have been the primary caretaker for minor children up until the initiation of divorce proceedings, your petition for child support should be among your first orders of business. Child support is generally granted on a temporary basis during the pendency of a divorce and thereafter until the respective emancipation(s) of the child(ren). Child support is not deductible by the paying parent and not taxable to the recipient parent.

In 1984, Congress enacted a law that required the states to set guidelines for the payment of child support. The law specifically provides that these guidelines are to be applied "unless the court, after considering evidence presented on all relevant factors, finds a reason for deviation from them."

Illinois requires the support-paying (i.e., non-physical residential) parent to pay twenty percent (20%) their net income for one child, twenty-eight percent (28%) for two children, thirty-two percent (32%) for three children, forty percent (40%) for four children, forty-five percent (45%) for five and fifty percent (50%) for six or more children.

Among those relevant factors which the court can consider in determining the amount of child support it will order are: each parent's income; the child's needs (including special needs such as medical, educational, day care and psychological needs); the needs of the parents; and the standard of living the children would have enjoyed if the parties remained married.

The non-payment of child support is another problem. The courts are clogged with cases of custodial parents - mostly mothers - trying to get desperately needed money.

Each unpaid installment of child support becomes a separate judgment against the support paying parent. Past due payments of child support translated into judgments accrue interest and are not dischargeable in bankruptcy.

While it is important to note that the payment of child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation, it is also important to mention that recent studies have shown non-custodial parents are more likely to pay support in a timely fashion when their visitation with children for whom the support is intended occurs without interference.

Since 1994, both Illinois and federal law require employers to withhold wages from employees who are under court order to pay child support. Upon the entry of every order to pay, wage assignments are routinely sent by the recipient parent's attorney to the employers of the support paying parent. The payments are then automatically deducted from the pay check of the employee and either sent directly to the recipient parent or the Clerk of the Circuit Court who sends it to the recipient parent.

A court may also order an unemployed person who is obligated to pay child support to seek employment and to provide the court with proof that he or she is diligently looking for employment.

The courts are also increasingly inclined to utilize their contempt powers for the incarceration of those parents who continue to disregard their obligation to pay child support.

Once entered, an order to pay child support may only be modified (increased, decreased or abated) if a court finds that changed circumstances warrant a modification.

When contemplating an order of maintenance and/or child support, it is important to prove your income and your spouse's income early in the process. Help your lawyer put together a complete financial history by providing any documents pertaining to income. The temporary child support and/or maintenance set at the first hearing is important to both parties, as they are generally in effect from 60 days to the completion of trial and set a tone for the balance of proceedings.

In their rulings on maintenance and child support, the courts are statutorily required to consider the lifestyle of the parties during the marriage and the standard of living the parties' children would have enjoyed had the marriage not been dissolved, but these considerations are often lost in everyday application. It should be the role of your attorney to occasionally refresh the court's recollection of this fact on your behalf.