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Chicago Spousal Maintenance and Same-Sex Marriage

Chicago Spousal Maintenance and Same-Sex Marriage

By: M. Scott Gordon

For Illinois residents who are thinking about filing for divorce, it’s important to know a little bit about the new spousal maintenance guidelines that went into effect earlier this year. But given that same-sex marriage has only been legal in Illinois for fewer than two years, will the guidelines apply differently in practice to same-sex couples seeking a divorce? In other words, do spousal maintenance laws apply equally to opposite-sex married couples and same-sex married couples?

Basics of the New Spousal Support Guidelines

Spousal maintenance, also known as spousal support or alimony, is what one spouse pays to the other in certain divorce cases. The amount and duration of support is specific to each couple’s situation, and it depends heavily on the payor spouse’s earnings, the payee spouse’s earnings, and the length of the marriage.

The new guidelines, which went into effect in January, 2015, apply to couples that have a combined gross income of under $250,000. Judges aren’t required by law to use the guidelines—hence the term guidelines—but the guidelines mean that spousal maintenance will be much easier to predict when you are getting divorced in Chicago and the surrounding Chicago counties.

Here’s a quick reminder of how the guidelines work: annual spousal maintenance should equal 30 percent of the payor spouse’s gross income minus 20 percent of the payee spouse’s gross income. The only catch is that the total amount of spousal maintenance can’t go beyond 40 percent of the combined gross income of both spouses. So, if the payor spouse makes an annual gross income of $120,000 per year and the payee spouse makes an annual gross income of $60,000 per year, the equation would look like this:

$120,000 x .30 = $36,000 (30 percent of the payor spouse’s annual gross income)

$60,000 x .20 = $12,000 (20 percent of the payee spouse’s annual gross income)

$36,000 – $12,000 = $24,000 (the total annual maintenance for the payee spouse)

This is a simple calculation, and child support will effect these numbers. The new law also takes into account the length of the marriage, going in five-year increments. Once a couple has been married for 20 years or more, the court has discretion to award permanent spousal maintenance. But what does this aspect of the new guidelines mean for recently married same-sex couples?

Applying the Spousal Maintenance Guidelines to Same-Sex Couples

As of February 21, 2014, same-sex couples could apply for marriage licenses in Illinois. On that date, couples who were in civil unions also were given the option to convert their civil unions into marriages. Under Illinois law, same-sex couples are eligible to use the date of their civil union as the date of their marriage. The same laws that apply to opposite-sex married couples as of February 2014 also apply to same-sex married couples. In other words, laws pertaining to married couples—both opposite-sex and same-sex couples—are governed by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/).

As such, the new spousal maintenance guidelines should be applied equally to opposite-sex and same-sex married couples. Just as same-sex couples are entitled to marry in Illinois, they can also file for divorce. Given that the new guidelines also take into account length of marriage, however, same-sex couples—despite having lived in a domestic partnership for years or even decades—likely will see those formulas applied uniformly based on the marriage date.

However, each situation is different, and every divorce case has its own nuances and complications. If you have questions about spousal maintenance in Chicago or the surrounding Chicagoland area, contact an experienced Chicago divorce lawyer at M. Scott Gordon & Associates today to learn more about your rights.