Summary of Illinois Alimony Law

Alimony (referred to as maintenance in Illinois) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

The laws of Illinois governing alimony are generally contained in the Illinois Marriage and Dissolution of Marriage Act (a link here). It is a good idea to read the statutes carefully and to consult an attorney to determine the laws’ application in your particular situation.

Factors Affecting the Amount and Duration of Alimony in Illinois

In Illinois, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs.

There are three basic types of alimony in Illinois: permanent maintenance, temporary maintenance, or maintenance until the payee spouse can become self supporting (called rehabilitative maintenance).

In determining whether to grant alimony, a court will consider all relevant factors that “appear reasonable and necessary including to the extent applicable”:

• • the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;
• • the needs of each party;
• • the realistic earning capacity of each party;
• • any impairment to present earning capacity of either party, including age and physical and emotional health;
• • the standard of living established during the marriage;
• • the degree of complexity of the issues, including custody, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;
• • each party's access to relevant information;
• • the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and
• • any other factor that the court expressly finds to be just and equitable.

Modifying Maintenance Orders in Illinois

A court generally may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if there has been a substantial change in circumstances. However, the parties may agree to make maintenance non-modifiable. Examples of changes in circumstances that might warrant a maintenance modification might include increased or decreased ability to pay or a substantial change in the needs of either party.

When do Alimony Payments End?

Alimony payments generally will end when one party dies or when the recipient spouse remarries. In some cases, it may also end when the recipient spouse cohabitates.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse