Does it matter when you file for divorce?

Author 
Erin B. Bodendorfer

Does it matter when you file for divorce?  Yes, in a divorce case involving maintenance, the filing date of a Petition for Dissolution of Marriage in Illinois may impact the term of the maintenance award.  Effective January 1, 2015, Illinois adopted “guidelines” for maintenance (otherwise known as alimony or spousal support) awards. In a case where one party may be a maintenance recipient, the filing date of the Petition for Dissolution of Marriage can be extremely important.  That is because the maintenance guidelines provide for a term of maintenance that depends on the length of the marriage calculated as the period from the date of the marriage to the date of filing of Petition for Dissolution of Marriage.

The guidelines are applicable once it has been determined that a maintenance award to one of the spouses is appropriate, and the guidelines apply to situations where the combined gross income of both parties is less than $250,000 and there is not a multiple family situation.  If applicable, the guidelines provide the following calculation for a term of maintenance[1]:

  • 5 years or less: .20 times the length of marriage;
  • More than 5 years but less than 10 years: .40 times the length of marriage;
  • 10 years or more but less than 15 years: .60 times the length of marriage;
  • 15 years or more but less than 20 years: .80 times the length of marriage;
  • 20 years or more: in its discretion, court shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

The length of the marriage pursuant to the guidelines for maintenance is determined based upon the date a Petition for Dissolution of Marriage is filed.[2]

For example, in a marriage of 9 years where a Petition for Dissolution of Marriage is filed before the tenth anniversary, the maintenance term under the guidelines would be equal to approximately 3.6 years (9 years x .40 = 3.6 years).  However, if a Petition for Dissolution of Marriage is filed after the tenth anniversary, the maintenance term under the guidelines would be equal to approximately 6 years (10 years x .60 = 6 years).

As such, if someone is contemplating divorce and approaching a 5th, 10th, 15th, or 20th anniversary, he or she should certainly be mindful of this issue.

 


[1] Depending on the length of the marriage (whether the marriage is 10 years or less) and other factors, a maintenance award may not terminate upon the completion of the initial term pursuant to 750 ILCS 5/504.

[2] The length of the marriage for other purposes under Illinois law may differ.  For example, in Illinois marital property continues to accrue until a final Judgment of Dissolution of Marriage is entered (in other words, after a Petition for Dissolution of Marriage is filed and until the divorce is granted) pursuant to 750 ILCS 5/503.