Extending the Obligation When a Five-Year Agreement Doesn’t End

When should a former spouse file for an extension of maintenance? Recently, in the 1st District Appellate Court opinion on Wojcik , 2018 Ill.App.1st 170625, the court attempted to answer that question.
The parties’ settlement agreement provided that the ex-husband pay financial support to the ex-wife for five years. The ex-wife brought her extend maintenance petition about a month after the expiration of the five-year support period.
The trial court denied the ex-husband’s request to dismiss her petition and an evidentiary hearing was held on the issue which resulted in a judgment for the ex-husband to pay permanent maintenance.
The trial court also ordered the ex-husband to pay retroactive maintenance dating back to the filing of the ex-wife’s petition and ordered the ex-husband to pay prejudgment interest on the retroactive maintenance award. The appellate court affirmed the trial court’s judgment on the amount and duration of maintenance, however, reversed the award of prejudgment interest.
On the issue of the appropriate time to file for an extension of maintenance, the case law goes both ways. Some cases have held that the recipient must file their extend maintenance petition on or before the full satisfaction of the payment of maintenance as set forth in the judgment.
In this case, the language of the obligation was “Michael shall pay to Sandra as and for unallocated family support, the periodic sum of $13,500 per month, for a period of 60 months, reviewable.” Sandra did not expressly waive maintenance.
A month or so after the unallocated family support payments ended, the ex-wife filed the extend maintenance petition. The ex-husband argued that, to the extent the obligation was modifiable, it could only be modified or extended during the period the obligation was ongoing.
The trial court disagreed with the ex-husband’s position and set permanent maintenance. During the approximately 40-month period following the termination of the unallocated family support obligation, the ex-husband paid nothing to the ex-wife in the form of maintenance. Following the trial, the court also ordered the ex-husband to pay $239,400 in retroactive maintenance plus prejudgment interest on that amount.
On review, the ex-husband relied upon In Re the Marriage of Doermer, 2011 Ill.App.1st 101567, in which the 1st District affirmed the decision that the former wife was not entitled to seek maintenance after the original term of unallocated family support had expired.
However, the court here distinguished both cases because the Doermer agreement had an express provision for the termination of maintenance once the husband paid all of the unallocated family support. Specifically, the agreement stated that the former wife would be “forever barred from receiving maintenance” once the husband had made all the unallocated maintenance payments.
The Wojcik agreement had no such terms. Rather, the obligation was termed “reviewable.”
Also, there was language allowing modification if no termination event had occurred. While the exhusband acknowledged that the support payment was reviewable, he maintained that the ex-wife should have filed her extension petition before the termination of his obligation —60 months.
The appellate court disagreed, stating there was nothing in the agreement here that prohibited the ex-wife from seeking relief to extend the maintenance beyond the initial term.
As it relates to the award of prejudgment interest upon the retroactive maintenance award, the appellate court reversed this aspect of the judgment. The appellate court first analyzed Section 5/101 of the Illinois Marriage and Dissolution of Marriage Act which provides “any maintenance obligation including any unallocated maintenance and child support obligation or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as set forth in [S]ection 505 of this [a]ct.”
The appellate court then identified that neither party cited any case law on this issue of prejudgment interest. As such, the appellate court interpreted the statute and focused on the phrase “be – comes due and remains unpaid.”
The appellate court reasoned that the retroactive maintenance award did not become due and could not be considered unpaid until the judgment was entered modifying and extending the support obligation. Therefore, the prejudgment interest on the retroactive maintenance award was not warranted.
The appellate court also pointed out that the ex-husband put forth a good-faith argument that his support obligations had terminated under the terms of the agreement and that he could not have known the appropriate amount to pay during the 40-month pendency of the ex-wife’s petition.
As such the court held that the ex-husband was not unjustifiably withholding money.
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.
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