Does Permanent Mean Forever?

Published in Chicago Lawyer Magazine, September 2017
by Daniel R. Stefani

Hot off the press is In re the Former Marriage of Bernay, 2017 IL App (2d) 160583. The Second District Opinion is a must read for any payor or potential payor of permanent maintenance. In some ways, this Opinion redefines the longstanding definition of permanent maintenance as is understood in most divorce Courts in Illinois. After a 14 year marriage, Wife petitioned to dissolve the marriage. At the time, the children were still minors. At the time of the parties’ dissolution, Wife had graduated with an Associate’s Degree and was employed as a nurse. Husband earned an average of approximately $125,000 per year. The Judgment for Dissolution of Marriage provided that ex-Husband would pay ex-Wife $4,150 per month in unallocated maintenance and child support, reviewable after 36 months. In 1999, at the review hearing, ex-Wife earned $28,000, and ex-Husband earned approximately $383,000. At the review hearing, the Court increased ex-Wife’s unallocated maintenance and child support to $6,000 per month, reviewable after 60 months.

In 2004, ex-Wife petitioned for an extension of maintenance and in March 2006, the trial Court ordered ex-Husband to pay permanent maintenance in the amount of $3,600 per month. At the March 2006 hearing, the trial Court found that ex-Wife was in her 50’s, earning $42,000 annually and had very little assets. The Court found that ex-Wife had made good faith efforts toward financial independence but was employed at an income insufficient to provide for her own support consistent with that standard of living established during the marriage. The Court noted that during the marriage.

The Court found that ex-Husband (who was also in his 50’s) had substantial income and additional economic benefits from his new marriage. Ex-Husband’s assets were approximately $2.5 million. The Court found that ex-Husband had an increased ability to pay maintenance and that due to these parties’ grossly disparate earnings, the goal of ex-Wife becoming self-sufficient was never achievable. Therefore, an award of permanent maintenance was warranted after the two prior reviews and nothing would be gained by adopting another review period. The permanent maintenance would terminate only upon either party’s death or upon ex-Wife’s remarriage or cohabitation. Ex-Husband appealed and in 2007, the Appellate Court issued a Supreme Court Rule 23 Opinion affirming the Order.

In 2014, after payment of 19 years of maintenance on a 14 year marriage, ex-Husband petitioned the trial Court to terminate ex-Wife’s maintenance. Ex-Husband (now in his 60’s) based his Petition to Terminate on his imminent retirement date within the next year and also cited that he had been diagnosed with lymphoma.

After a hearing, the trial Court found that there had been a substantial change in circumstances due to ex-Husband’s illness, his reduced salary and his imminent retirement. The Court also found that ex-Wife had failed to make reasonable efforts to become financially self-sufficient based on her only working part-time in recent years.

Ex-Wife appealed. The Appellate Court reversed and reinstated the March 2006 trial Court Order awarding permanent maintenance. The ultimate ruling appears to preclude the ex-Husband’s retirement from qualifying as a substantial change warranting a termination of permanent maintenance.

Ignoring many of the other factors in the statute, the Court stated that the party seeking to terminate maintenance was required to show that a substantial change in circumstances had occurred; namely, either ex-Wife’s financial needs had significantly decreased or ex-Husband was no longer able to pay. As it relates to the trial Court’s main basis for terminating the maintenance, which was ex-Husband’s imminent retirement, the Appellate Court stated that it was not a substantial change because when the trial Court awarded permanent maintenance in 2006, the parties were both in their mid-50’s and that ex-Husband’s retirement was clearly contemplated when permanent maintenance was ordered. Therefore, ex-Husband’s retirement could not be a substantial change despite no evidence cited from the 2006 transcript for that conclusion. Given this case, any litigant who is in their mid-50’s and adjudicating maintenance should be aware of the implication that a reasonable retirement by them in his or her 60’s may not be a basis for termination.

The Court also found that his lymphoma diagnosis was not a substantial change in circumstances, as no evidence was offered that his condition would deplete his impact or deplete his financial resources. The Appellate Court went further to state that the trial Court’s finding that ex-Wife’s efforts to secure full-time employment were insufficient was in error in part because nothing in the 2006 Order required ex-Wife to obtain full-time employment. This despite the specific language of the statute and case law on the subject.

Ultimately, the Court reversed the termination and reinstated the 2006 Order and remanded only for the Court to calculate any arrearage that resulted from the 2014 termination Order. It appears from this Opinion that ex-Husband will be paying maintenance until the death of either party, ex-Wife’s remarriage or cohabitation, or perhaps he may obtain a termination if, as and when he depletes enough of his estate to prove that he is no longer able to pay maintenance.