On January 1, 2015, the new Section 504 maintenance guidelines became effective in Illinois. Although this statute clearly applies to divorce petitions filed on or after its effective date, its retroactive application to cases filed prior to that date takes careful consideration of whether its provisions are procedural or substantive. If a provision is classified as procedural, then it may be applied retroactively. If a provision is classified as substantive, then it may only be applied prospectively. Caveney v. Bower, 207 Ill. 2d 82 (2003). A provision is classified as procedural if it prescribes the method of enforcing rights, and a provision is classified as substantive if it establishes the rights whose invasion may be redressed. People v. Atkins, 217 Ill. 2d 66, 72 (2005).
If a provision attaches new legal consequences to events completed before its enactment, then it may not be applied retroactively. Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39 (2001). In a divorce case, the “event” from which all rights and obligations flow is the marriage. Therefore, if a marriage was dissolved prior to January 1, 2015, then only those provisions classified as procedural are applicable to such dissolved marriage. The new statute contains several distinct provisions, the retroactivity of which will each be addressed in turn.
The Maintenance Guidelines Formula
Section 504(b-1)(1) states that 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 the new maintenance guidelines formula. Under the formula, both the maintenance amount and duration are determined by a mathematical equation. To calculate the amount and duration of maintenance under the new formula, use the Illinois Maintenance Calculator.
This is a substantive provision that applies only to maintenance awards arising from marriages not dissolved prior to January 1, 2015.
Deviation from the Maintenance Guidelines Formula
Section 504(b-1)(2) states that court may deviate from the maintenance guidelines formula. However, “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.”
This is a procedural provision that may be applied to maintenance awards arising from marriages dissolved prior to January 1, 2015.
Requirement for Specific Findings of Fact
Section 504(b-2) states that in each case involving the issue of maintenance, a court must make specific findings of fact, as follows: (1) the court must state its reasoning for awarding or not awarding maintenance and must reference the 12 enumerated factors listed in Section 504(a); and (2) if the court deviates from the guidelines, then the court must state the amount or duration of maintenance under the guidelines and its reasoning for the deviation.
This is a procedural provision that may be applied to maintenance awards arising from marriages dissolved prior to January 1, 2015.
Definition of Gross Income
Section 504(b-3) states that to arrive at the maintenance amount under the guidelines formula, the parties’ gross incomes must first be determined. The statute defines “gross income” as “all income from all sources, within the scope of that phase in Section 505 of this Act.”
This is a substantive provision that applies only to maintenance awards arising from marriages not dissolved prior to January 1, 2015.
Prohibition of Unallocated Maintenance and Child Support
Section 504(b-4) states that “[u]nless the parties otherwise agree, the court may not order unallocated maintenance and child support in any dissolution judgment or in any post-dissolution order.” The court must make separate allocations for child support and maintenance.
This is a procedural provision that may be applied to maintenance awards arising from marriages dissolved prior to January 1, 2015.
Permanent Termination Date of Maintenance
Section 504(b-4.5) states that if a divorce case is filed before the 10th anniversary of the marriage, a court may now designate a “permanent termination” date for any maintenance award. “The effect of this designation is that maintenance is barred after the ending date of the period during which maintenance is to be paid.”
This is a substantive provision that applies only to maintenance awards arising from marriages not dissolved prior to January 1, 2015.
I was divorced over 7 years ago and my payment terms were reviewable in 7 years. Does this mean now that if a judge were to review, the new standard would apply?
As the above article explains, the new maintenance statute contains several distinct provisions and each provision much be addressed individually. As your marriage was dissolved prior to January 1, 2015, only those provisions classified as procedural are applicable. That said, however, the modification or review of a maintenance award is subject to a different section of the Illinois Marriage and Dissolution of Marriage Act than an initial award of maintenance contemporaneous with the entry of a divorce judgment. Section 510(a-5) controls the modification or review of a prior maintenance award. That section does not direct a court to use the maintenance guidelines formula during the review of a prior maintenance award.
Hope this helps. Thanks for the comment!
So with this new law. Say a husband grosses 85,000 per year. His net is 69,000. The wife has zero income and they have been married six years and have two small children. He pays her 25,500 a year in maintenance for 2.4 years. How is child support figured out. Between 30% of his gross for maintenance and 28% for child support that’s a total of 58% of his income going to her. How does he survive only bringing home not even half of what he makes?
To answer your first question, child support is calculated based on the child support guidelines, which can be found in Section 505 of the Illinois Marriage and Dissolution of Marriage Act. Under the child support guidelines, the amount of child support is calculated by multiplying the payor’s net income by a percentage (the percentage is based on the number of minor children). Distinguishable form the maintenance guidelines, which calculate the amount of maintenance from the gross incomes of the spouses, the child support guidelines calculate the amount of child support from the net income of the payor.
To calculate child support under the child support guidelines, you must determine the payor’s net income by subtracting from the payor’s gross income any allowable deductions. One such allowable deduction is an obligation “pursuant to a court order for maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable.” 750 ILCS 5/505(a)(3)(g-5).
Under your set of facts, you must first determine your maintenance obligation, which you have correctly determined to be $25,500.00 per year. Next, you must determine your net income for child support purposes. To arrive at your net income you must subtract, from your gross income, any allowable deductions, such as your maintenance obligation. When you subtract your maintenance obligation from your gross income you arrive at $59,500.00. From the $59,000.00 you must still subtract other allowable deductions such as federal and state income taxes, social security payments, mandatory retirement contributions, etc.
So, as you can see, your net income for child support purposes will be reduced substantially. Subtracting your maintenance obligation alone, without any other allowable deductions, has reduced your total obligation, both maintenance and child support, to $42,100.00 ($25,500.00 for maintenance and $16,600.00 for child support), which is under 50% of your gross income. That amount will be reduced even further upon proper calculation of your net income for child support purposes.
Hope this helps. Thanks for the comment!