The Illinois Appellate Court issued two notable maintenance decisions. One strictly enforces the parties? agreement to not modify maintenance; the other allows flexibility for a disabled spouse to file a late petition for review. Both decisions favor the maintenance recipient and both are guided by the particular facts of each case.
Maintenance is court-ordered financial support for a spouse paid in a divorce based on the recipient’s needs and the obligor’s ability to pay. In Illinois, statutory maintenance guidelines create a presumption as to amount and duration. The longer the marriage, the longer the maintenance. Unless the parties agree to make maintenance non-modifiable within their marital settlement agreement, nearly all maintenance is modifiable and reviewable based on a substantial change in circumstances. However, maintenance terminates if either spouse dies, the recipient remarries or cohabits with another person on a resident, continuing conjugal basis.
In In re Marriage of Scarp, 2022 IL App (1st) 210711, the husband sought to modify his monthly maintenance payments based on a substantial change in circumstances. The trial court denied his petition because the parties? marital settlement agreement did not allow for modification. The appellate panel affirmed, finding the marital settlement agreement contains a clear and unambiguous statement, patterned on section 502(f) of the Illinois Marriage and Dissolution of Marriage Act, that it was not modifiable. Specifically the agreement states, ?Except for the terms herein concerning the support, custody or visitation of the minor children, this Agreement shall not be changed, modified or altered by any order of Court *** except by mutual consent of the parties.?
This catchall statement is sufficient evidence of the parties? intent to make the entire marital settlement agreement, including maintenance, non-modifiable. In the court’s view, a marital settlement agreement need not include a specific statement mentioning maintenance to make it non-modifiable. The global catchall phrase is good enough.
In Scarp, the panel was guided strictly by legal principles of contract interpretation and was not persuaded by the husband’s argument that the outcome would lead to an absurd result in which the wife would now make more income than he. Compare this to In re Marriage of Watson, 2022 IL App (2d) 210137, in which the Appellate Court relied mainly on equitable principles to guide the result.
In Watson, a disabled, mentally-ill wife appealed an order dismissing her post-dissolution petition to extend and increase maintenance as time-barred. On Sept. 10, 2018, nearly six years after the parties? divorce, the trial court extended the wife’s maintenance for an additional 24 months, stating that it will terminate at that time unless a petition seeking an extension of same is filed on or before the termination date.? The wife did not file a petition to extend maintenance until Sept. 28, 2020, and the husband argued her petition was untimely. The trial court agreed and dismissed her petition. The 2nd District panel found this to be an abuse of discretion and reversed and remanded for further proceedings.
The panel found adhering to an arbitrary filing deadline against a disabled, mentally-ill former spouse would inequitably place form over substance.? The panel rejected husband’s contention he would be prejudiced by allowing his wife to refile. He commented that maintenance is a matter of equity, and the court retains the power to modify it ?at any time, according to the varying needs and circumstances of the parties.? In other words, based on a substantial change in circumstances.
What constitutes a substantial change in circumstances has been the subject of debate and topic of many appellate decisions. In an attempt to bring clarity, the Illinois legislature amended section 510 of the Illinois Marriage and Dissolution of Marriage Act to provide that contemplation or foreseeability of future events shall not be considered as a factor or used as a defense in determining whether a substantial change in circumstances is shown. That is unless the future event is expressly specified in the court’s order or the agreement of the parties incorporated into a court order. See P.A. 102-0823 (eff. May 13, 2022). This amendment also allows parties or the court to expressly specify the occurrence of a specific future event is contemplated and will not constitute a substantial change in circumstances to warrant modification of maintenance.
While neither Scarp nor Watson address this amendment, it is significant and will require careful drafting by practitioners to protect their client’s rights.
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