The law never sleeps. While I am not sure this is a quotation I can attribute to anyone, in particular, the sentiment is all too true. Recently the Illinois legislature made even more changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) by the passage of Public Act 100-0520. These changes follow on the heels of a nearly complete revamping of the entire IMDMA over the past three years. The newest changes will take effect June 1, 2018.
The changes mostly relate to Section 504 and maintenance (alimony) issues. While many family law practitioners knew these changes were coming, and some were even requested by the Family Law Bar, the general public is probably unaware of most of these changes. Admittedly, some of the changes are basic and common sense, others may not seem like common sense, and all of them have a significant impact on divorce and family law cases.
The main changes of concern involve maintenance and its duration. The first significant change deals with the calculation of the duration of the maintenance award. Under the current provisions, the periods of maintenance are broken up into 5-year chunks and a corresponding percentage is assigned to each chunk. For example, the duration of the maintenance award for marriages of 5 years or less is 20% of the length of the marriage. If you have a 5 to 10 year marriage, the duration of maintenance is set at 40% of the length of the marriage and so on.
Under the new revisions, the chunks are broken up into yearly ranges with varying percentages. Starting with marriages of 5 years or less, the duration is still 20% of the length of the marriage, however marriages between 5 and 6 years will have a maintenance duration of 24% of the length of the marriage. For marriages lasting between 6 and 7 years, the duration of maintenance will be 28% the length of the marriage and so on, up to marriages lasting between 19-20 years resulting in a maintenance award equal to 80% of the duration of the marriage.
For marriages that are over 20 years, the legislature removed the language stating the Court should award permanent maintenance and rephrased the wording to state the Court has the discretion either to award maintenance for a period of time equal to the length of the marriage or an indefinite term. In straight English, this means that, if you are married 25 years, the Court can award maintenance for a period of 25 years or order maintenance with no definite end time. In deciding which way to go, the Court must consider the factors stated under Section 504. Most courts will focus on the age of the parties, the parties’ health, the parties’ present and future earning capabilities, property received by each party, including retirement assets, in addition to the overall length of the marriage.
Another noteworthy change is that Courts will have the discretion to credit awards of temporary maintenance, which are awarded while the divorce is pending, to count against the overall duration of maintenance awarded as part of the final divorce. Some judges already engage in this practice, at least in terms of settlement talks, while others do not. This change will make the practice uniform, in the sense that judges are required to consider whether to include temporary maintenance as part of the formula for the ultimate maintenance award. While the change still allows the Court to exercise discretion in this respect, it should help dissuade the practice of a party seeking maintenance from prolonging the divorce process in the hopes of extending the duration of maintenance. If the duration of maintenance can include the period of temporary maintenance, the motivation to prolong the process to extend the duration of maintenance is eliminated.
One relatively minor change to the maintenance law is the addition of the word “annual” to define for clearly what “gross income” means for maintenance purposes. This change will have little impact on actual practice because most attorneys and judges have already been considering the annual income of the parties. Thus, this change clarifies the statute by codifying the standard practice provides and removing any doubt in the way gross income should be defined.
Public Act 100-0520 provides another modification to the IMDMA to make it more uniform and fair. Under the current statute, only women who change their names are granted the ability to resume the use of a maiden name or former name as part of a divorce. This is outdated language given that the law now allows same-sex couples to marry, and, even in a heterosexual marriage, the husband may take the wife’s last name, or the parties may both change their names. Public Act 100-0520 will allow any party to a marriage who wants to resume the use of a former name be granted that right.
As stated at the outset, changes in the law are a constant, almost like changes in the weather at times. Whether the changes are drastic or just a little fine-tuning, you should be aware of the fact that laws are constantly changing and you should demand of the attorneys who represent you to keep up on changes to the laws that impact their practice. We strive to be those attorneys. If you have questions about your own legal issues and want to discuss your specific situation, please do not hesitate to contact us.Roman J. Seckel Drendel & Jannsons Law Group 111 Flinn Street Batavia, IL 60510 630-523-0543 www.batavialaw.com [email protected]