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Potential Changes to the Maintenance Statute in Illinois

Illinois House Bill 4759 (“Bill”) was recently introduced suggesting changes to the maintenance statute under the Illinois Marriage and Dissolution of Marriage Act.  The proposed change to the statute presents a major shift in considering a spouse’s fault when setting maintenance or alimony.  For well over 40 years, the statute has directed courts to equitably divide assets and liabilities, set maintenance awards for either spouse, and/or set child support for the benefit of the minor child(ren) without regard to marital misconduct.

Overview of Proposed Changes

The new Bill provides that any agreement between parties for the disposition of maintenance is unconscionable if the obligor spouse (spouse paying support) is the petitioner and the oblige spouse (spouse receiving support) is the respondent in an order of protection proceeding under the Illinois Domestic Violence Act of 1986.  The Bill further provides that a court may not grant a maintenance award to a spouse who is the respondent in an order of protection under the Illinois Domestic Violence Act of 1986 if the petitioner is granted an order of protection and is the intended obligor (spouse paying support) and the respondent is the intended oblige (spouse receiving support).

As such, not only is the court barred from making an award of maintenance at a trial or hearing, a court is directed to make a finding of unconscionability when the parties’ independent agreements are presented to the court for approval.  The court is also directed that if an agreement is unconscionable due to an order of protection under the Illinois Domestic Violence Act of 1986, the court shall require the parties to submit a revised agreement, as it relates to the disposition of maintenance or upon hearing shall deny any order or provision of an order for the disposition of maintenance.

Impact as a Court Considers a Party’s Motivation in Seeking an Order

This Bill raises many concerns if the courts are now directed to consider certain marital misconduct when awarding maintenance. It is concerning that a court, presiding over an order of protection hearing, might consider the impact of an order of protection on the parties’ finances as well as a party’s possible ulterior motivation in seeking such an order. Would a court be less inclined to enter a legitimate order of protection if maintenance could be impacted as proposed in the Bill? Would a court consider a request for an order of protection as a means to secure support or leverage finances in a case?

Impact of Different Claims and Remedies in an Order of Protection

Further, there is also an issue of what is really the marital misconduct if an order of protection is entered under the Illinois Domestic Violence Act of 1986?  There are several bases for a finding of the appropriateness of the entry of an order of protection and there are also several remedies.  Is maintenance barred by the entry of any order of protection or only certain orders of protection that have certain remedies and/or were entered based upon certain circumstances?

Impact of the Term of the Order of Protection

Would a temporary order of protection that is subsequently vacated impact maintenance? Additionally, most plenary orders of protection are for a period of two9 (2) years.  Does this mean that the maintenance amount would toll or abate just during that period of two (2) years, and thereafter, the obligation would begin again, as many and most maintenance awards are longer than two (2) years duration?  Would the amount of maintenance be vacated and then reserved during the period where the obligee spouse or ex-spouse would otherwise be entitled to a payment of maintenance for a full hearing on the merits?  Would the duration be affected at all?

Impact on the Parties’ Ability to Settle Issues

The Bill also talks about a finding of unconscionability of any party’s agreement as to the payment of maintenance and that the court requires the submission of a revised agreement as it relates to the disposition of maintenance or if the payor spouse objects and requests a hearing, is the court mandatorily required to deny any order for the disposition of maintenance?  It seems to state as such.

It seems that under the Illinois Domestic Violence Act of 1986, any deterrent to a potential offender is a good thing.  However, the legislature should think further as to how to fashion a remedy against a payee spouse for maintenance and how long such an imposition of such a punishment should last.

Daniel R. Stefani is a Principal and one of the co-Founders of Katz & Stefani.

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