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Naperville family law attorneysAn order for spousal maintenance, or spousal support, in a divorce is issued on a need-based review of each individual case. There is no presumption that one spouse or the other will be required to pay spousal support. Spousal support, though less common than in previous generations, is still awarded in many divorce cases to help alleviate the financial burden of the divorce on an economically disadvantaged spouse. Once the final divorce judgment is entered, the spousal support order becomes enforceable by law and the supporting spouse must comply or face court sanctions. But what about during the divorce? Can spousal maintenance be ordered while the proceedings are still ongoing?

Temporary Orders

The simple answer is yes. Spousal support can be ordered by the court before the final divorce judgment is entered, but the order takes a somewhat different form. The process for obtaining a temporary maintenance order is different as well.

The Illinois Marriage and Dissolution of Marriage Act (720 ILCS 5) provides that either party in a divorce may request temporary spousal maintenance via a motion and a financial affidavit. The affidavit is a sworn (or affirmed) statement that lays out a party’s current financial situation, including all income, debts, and expenses. When filing, the spouse must also include supporting documentation such as tax returns, pay stubs, bank statements, and others as appropriate. The court will also take into account the current arrangements regarding parenting time and parental responsibilities.

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Naperville Family Law Firm

If you were a stay-at-home mom or dad during your marriage, and your spouse was the primary source of family income, divorce can present a unique set of challenges. Stay-at-home parents frequently forego education and career opportunities for years and even decades so they can raise children and take care of daily household duties. After a divorce, these parents find themselves re-entering the job market, many with little-to-no work experience and substantial gaps in employment.

Although spousal maintenance (formerly called spousal support or alimony in Illinois) is an option, is it something a divorced stay-at-home parent can expect?

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DuPage County divorce attorneysThe decision to get a divorce is among the hardest you will ever have to make. The process of divorce will likely present a large number of considerations for you to address. You and your spouse will need to decide who will get what assets, how you will parent your children after the divorce, and how to create new lives for yourselves. In many divorce cases, maintenance—also called spousal support or alimony—can be especially difficult to determine. It is impossible to place a value on your marriage, but the reality is that if one of you will struggle to make ends meet while the other is financially stable, maintenance may be necessary. If necessary, the court can make decisions about spousal support, but you and your spouse can also develop your own agreement that meets your needs while avoiding contentious courtroom proceedings.

Commitment to Cooperation

Anyone who says that divorce is easy is either lying or trying to sell you something. Divorce is almost always challenging, but more couples than ever before are approaching the process with a spirit of cooperation. In cases such as these, the spouses may have realized that their lives are better apart, but they still love and care for their partners and do not have any desire to create unneeded problems. If this describes your situation, you will probably be able to come to an agreement on maintenance quickly, efficiently, and without added stress.

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Naperville divorce attorneysThere has always been some confusion regarding spousal maintenance or alimony. Each state has its own rules and procedures for determining who should get spousal support and how much payments should be. However, one rule which is, for now, the same across the country is how maintenance payments are taxed. For the last 75 years, maintenance or support payments have been deductible for the payer. The recipient of the support is responsible for paying income tax on the funds. After Dec. 31, 2018, this will no longer be the case.

Maintenance Payments No Longer Deductible

Under the Tax Cuts and Jobs Act, spousal maintenance will no longer be deductible for the payer, and taxes will not need to be paid on it by the recipient. This could mean that those who get divorced in 2019 may be paying a much higher amount in spousal support than those who get divorced in 2018. Because spousal maintenance is paid by the spouse with a higher income to the spouse with a lower income, it made sense to place the tax burden on the person receiving funds. The lower-earning spouse generally has a lower tax rate than the higher-earning spouse.

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Naperville divorce attorneyGiven the changes to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in the last few years, it can be confusing to get a straight answer about the requirements and regulations on issues like parenting time, property disposition, and spousal support. The latter is perhaps the most often misunderstood, especially since the recent revisions to the IMDMA. Considering that many divorces involve someone paying spousal support, doing your research is important.

Support Is Usually Temporary

Spousal support—previously known as alimony—is granted only when a judge has been convinced that you are in need of it, and with rare exceptions, it will be granted for a term of years, rather than indefinitely. Spousal support is granted or denied after a judge has weighed all the relevant factors and determined whether there is need. Factors that a judge may consider include current and future earning potential, the standard of living established during the marriage, and any previously executed valid prenuptial agreement, though there are many other issues that may play into a decision.

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