In the wake of the U.S. Supreme Court’s decision not to hear five gay marriage cases last month, gay marriage is effectively legal in 30 states and the District of Columbia. The ruling signals a sea change for gay couples, who will now have the same legal rights as hetereosexual couples – such as health care benefits, inheritance rights and deductions on tax returns as married couples. Same-sex marriage in Illinois was legalized by a law signed on November 20, 2013 by Governor Pat Quinn that took effect on June 1, 2014. Before that, Illinois had established civil unions as of June 1, 2011, when Governor Quinn signed legislation on January 31, 2011. As a family law practitioner, marriage equality carries with it several responsibilities. As much as it is wonderful to marry, marriage is a deliberate decision that requires both planning and commitment, especially if children are part of the union. My experience in creating and dissolving civil union agreements to date is that there is little difference between my hetereo and homosexual clients. Love is a choice and planning is essential. When things don’t work out, the heartache is the same.
In Illinois, divorcing couples with incomes up to $250,000 now have approved guidelines for maintenance payments. Under the terms of approved amendments to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), if a court determines that maintenance (formerly known as alimony) is appropriate, then it now has a formula to apply. This is a game changer in many ways perhaps most importantly because it provides a level of certainty to the post-divorce lives of couples. It also means that anyone contemplating divorce can calculate maintenance amounts, an area that has largely been left to the discretion of judges. For many years, a formula has been in place to determine child support and that helps create certainty among the many uncertain aspects of divorce. In my experience as a divorce lawyer, this standard will be helpful to both husbands and wives as they go through the process. More certainty typically means less stress.
How does it work? This is what the IMDMA says:
In situations when the combined gross income of the parties is less than $250,000 and no multiple family situation exists, maintenance payable after the date the parties’ marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.
A. The amount of maintenance under this paragraph (1) shall be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
B. The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.
Maintenance award not in accordance with guidelines. Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors set forth in subsection (a) of this Section.
A couple additional implications of the new guidelines:
- Child support will be lower than under the previous statute because the maintenance payments are deducted from gross income in order to determine the net income on which the child support will be based
- On the downside, the guidelines do not easily allow for flexibility or take into account the specific facts of any one case, where a shorter or longer payment period or smaller or larger payments might be more equitable. They also do not take into account specific needs and interests of the divorcing parties.
Of course the best way to gain the most certainty in a divorce is to execute a pre-nuptial agreement before you marry. Food for thought. Read more about this on the Illinois State Bar Association’s blog.