Illinois Divorce Law...

Illinois Law - When Might Spousal Maintenance Be Modified?

Spousal maintenance automatically terminates if any of the following occurs:

• The death of either party; or
• The remarriage of the recipient; or
• If the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.

However, the parties may agree, or the court may decide, that maintenance will continue despite one or more of these situations applying.

Section 5/510(c).

Cases:

Thurston (1994) 633 N.E.2d 118 (A number of circumstances changed. The husband remarried. The new wife made a down-payment of $52,000 on a $149,000 home. The court found that the husband's new wife contributed $700 per month, by helping with the mortgage, which was viewed as an increase in his income. The husband also received a wage increase at work of $153 per month. The court ordered an increase in maintenance from $900 to $1,150 per month. The wife had decreased her living standard, but the court did not hold that against her.)

Breuer (1994) 197 Ill.Dec. 121, 259 Ill.App.3d 94, 630 N.E.2d 1245 (The husband had at one point in the interim been receiving $50,000 to $100,000 a month from two oil and gas properties. However, by the time of trial, the properties had been foreclosed. The husband earned $75,000 a year plus $15,600 Social Security (about $90,000 total). Husband did not own a home. The wife owned a condominium with equity of $164,000, and investments worth about $80,000. The wife's total annual income, including Social Security but not including maintenance, was about $12,000. Both parties were 73 years old. The divorce had occurred 30 years earlier. The court approved a reduction in husband's support from $1,400 per month to $400 per month, so that the wife's total income would be about $16,800 per year, down from $28,800 per year.)

Waller (1993) 192 Ill.Dec. 403, 253 Ill.App.3d 360, 625 N.E.2d 363 (The court did not modify the spousal maintenance payments the husband made, even though the husband had retired. The marriage had lasted 33 years, and there were 4 children, all of whom had grown up and left the house before the divorce. The court found that the husband had retired at age 63 when he could have kept on working (albeit at a lower paying job) until at least age 65. The maintenance amount, which was permanent in the agreement, was $120 a week. The agreement did not mention modification upon retirement. The husband's net income, counting his pension and Social Security was approximately $20,000 a year. His income when he was working was $58,000 a year. He was remarried and living in a home belonging to his current wife that may or may not have had a mortgage on it. He had no debts. His car was about 11 years old. The ex-wife had gotten a job after the divorce and was steadily employed, and her income was about $19,000 a year, approximately equal to her expenses. She owned a condominium with about $25,000 of equity and a 7-year-old car. The judge found that the husband could afford to make the $120 a week payments and ordered that they be continued. Although retirement may sometimes be a reason for modification, depending on the retiring spouse's age, health, motives, timing, and ability to pay, in this case the retirement was not sufficient reason for modification.)

Klein (1992) 173 Ill.Dec.335, 231 Ill.App.3d 901, 596 N.E.2d 1214 (Because the wife was "cohabiting" with another man, the appeals court decided that the wife could not receive spousal maintenance, even though the trial court had awarded it. The marriage had lasted six years, and there were no children. The appeals court, interpreting the language of the Illinois statute, said that no maintenance could be awarded if the recipient wife was cohabiting at the time of the award. In this case, the wife had been dating for about eight months, and the new man sometimes stayed at her home for as much as a week at a time. The appeals court questioned whether the relationship really constituted "cohabiting," which required the court to deny maintenance. But the wife had agreed to label the relationship as "cohabiting," and so the court would not change that label. Maintenance was denied.)

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