Modifying or Terminating Maintenance Payments

 Posted on February 11, 2015 in Alimony / Maintenance

When a couple divorces, the court often orders one party to make maintenance (alimony) payments supporting his or her former spouse. Generally, this maintenance amount may only be modified or terminated if there has been a substantial change in either party’s circumstances. The court will consider various factors when considering a party’s petition for modification or termination, including:

• Changes in employment status, and whether the change was made in good faith (i.e.,  if the receiving spouse quits his or her job for no reason and then seeks additional maintenance, that change was not made in good faith);
• Whether the receiving spouse is making reasonable efforts to become self-supporting;
• Whether either party’s present and/or future earning capacity has been impaired, like if a party has been injured on the job;
• The tax consequences of the maintenance payments and how that impacts each party’s economic circumstances;
• The duration of the maintenance payments already paid (and remaining to be paid) relative to the duration of the marriage;
• The property that was awarded to each party when the marriage was dissolved and the present status of that property;
• Any increase or decrease in each party’s income;
• The property that each party has acquired since the marriage was dissolved; and
• Any other equitable factor.

Statutory Termination

While courts have discretion to modify or terminate maintenance based upon the above factors, there are other situations that might affect a party’s right to continued support. Specifically, maintenance statutorily terminates under the following conditions:

• Upon the death of either party;
• If the receiving party remarries; or
• If the receiving party cohabits with another person on a resident, continuing conjugal basis.

“Resident” and “continuing” are fairly straightforward and easy to prove. “Conjugal” is more complicated. A “conjugal” relationship is not necessarily sexual. In fact, a platonic roommate relationship can sometimes satisfy this requirement. If the conjugal relationship exists prior to divorce, the court may still award maintenance if the couple signs a written statement to that effect. If cohabitation is not a factor prior to divorce, the supporting party may still agree not to discontinue maintenance if the recipient cohabits after dissolution.

Termination by Agreement

Maintenance may also be terminated by written agreement. For example, the couple might decide during the divorce proceedings that maintenance should end once the recipient becomes financially stable, achieves a specified income level or reaches retirement age.

If you are seeking a modification or termination of maintenance payments, contact one of our experienced Kane County family law attorneys. We will advocate on your behalf so that you are paying or receiving your fair share. Contact us today for a consultation. We can assist those in the St. Charles area.