Determining if a Person is Entitled to Maintenance in a Divorce

For Illinois residents who are unhappy in their marriage, there are often hindrances that prevent them from taking the next step and pursuing a divorce. Finances are a common worry. If a stay-at-home spouse – with or without children – is thinking about the positives and negatives of a divorce, their determination could hinge on how much spousal maintenance they will receive as part of the settlement or court decision. Before dismissing the idea of a divorce to end the relationship for fear of being unable to live the same way as before, it is wise to understand what state law says about maintenance.

Factors the courts consider when a person seeks maintenance

The reason for the divorce is irrelevant in deciding whether maintenance is justified and how much it will be. In a marriage, there will be income and property. That is a fundamental aspect of a maintenance order and will include marital and non-marital property. If there are financial obligations that either party has stemming from the divorce, this will be considered. Both sides will have needs that must be met. The courts will not leave either side struggling to survive, so it will make its orders accordingly.

A key part of the order will be each side’s earning capacity. Using the previous example of the stay-at-home spouse, he or she might have remained on the sideline and out of the job market while the other spouse worked, built a business, or completed an education. This will impact what the stay-at-home spouse can earn when back in the job market. Earning capacity will be weighed as will the amount of time it may take for the person to accrue education, training, and skills to self-support. This will also influence the paying spouse and his or her advancement and career prospects.

If there are children, this will obviously be a mitigating factor in the amount awarded. Child support is separate, but if the custodial parent has responsibilities that the supporting parent does not, this will be reflected in the order. Every marriage has a standard of living whether it is a high-asset case or one of more modest means. The goal is to allow each side to maintain that standard of living. The length of the marriage will factor in. If it is a long marriage, the decision on maintenance may differ from a short-term marriage. The parties’ ages will be essential. If it is a younger person who the court believes is capable of finding means to support him or herself, it will gauge that potential when making the award. For an older person who might not have the same opportunities and ability, the award may be different.

Professional help may be crucial in a family law case

Divorce is an emotional time for everyone involved. With the personal and financial implications, it is imperative that the person who is likely to need spousal maintenance is fully protected. Some cases are relatively amicable and the sides can negotiate a reasonable agreement that is satisfactory to all. Others are contentious and rife with dispute. Many are somewhere in the middle. With maintenance, it is wise to understand the law and the criteria for an award. Before agreeing to a settlement or even avoiding the divorce altogether because of fear about what the future holds, consulting with experienced family law professionals can provide guidance and help from the start so an informed decision can be made.