Someone who has a greater income than his or her spouse can have an advantage during a divorce. If each spouse is left with only their individual resources, the wealthier spouse would be able to hire a more expensive lawyer, pay for other advisers, and better afford a prolonged legal battle. Illinois tries to level the playing field during a divorce by allowing someone to request interim attorney fees and costs from their spouse if they cannot afford these expenses. This divorce tool is a financial boon or burden, depending on which side of the court order you are on.

Receiving Interim Fees

As the name suggests, you will file for interim attorney fees and costs while the case is still ongoing. This request is strictly meant to pay for your legal fees related to your divorce. If you need help paying for your living expenses, you need to file for temporary spousal maintenance. When deciding whether to grant interim attorney fees, the court will consider:

Divorce in the U.S. has changed in many ways during the last decade. The divorce rate has settled down from the boom the country experienced in the 1970s. Millennials, who were the children of many of those divorces, are waiting longer to get married and start a family. Divorce has also become more amicable because of the rising use of conflict resolution methods such as mediation and collaborative divorce. Women have increasing power during the process and are less likely to be financially dependent upon men. However, men have also seen increased benefits from divorce, thanks to that same trend towards gender equality.

Father’s Rights

The presumption used to be that the mother would have most of the control over the children after a divorce because the mother was the primary caretaker in the family. Fathers would typically have less decision-making power, and equal parenting time was practically unheard of. Now, courts see the importance of both divorced parents having a major role in raising their children. This means that courts:

• Are more likely to consider a father’s request for equal parenting time
• May give a majority of the parenting time to a father if it is in the children’s best interest
• May give more weight to a father’s desire for shared parenting, even if they were less active as a parent during the marriage

It is difficult to obtain equal parenting time in Illinois because courts presume that it is better for the children if one parent has more parenting time. Still, a proactive father is more likely to be rewarded, instead of getting the children every other weekend.

Spousal maintenance that is awarded during a divorce is meant to last for a defined length of time, usually determined by the length of the marriage and the needs of the recipient. In Illinois, maintenance may be permanent if the couple was married for at least 20 years or the recipient spouse has little chance of being able to support themselves. Sometimes, the divorce agreement may state that the parties will review the maintenance after a certain number of years to determine whether it should be extended or terminated. A recent Illinois case, in re Marriage of Brunke, involved two former spouses disagreeing during their maintenance review about whether the maintenance payments should continue and be increased. The court’s ruling on the case explains which factors a court may consider when reviewing a maintenance agreement.

Rehabilitative Maintenance

One of the most important factors is whether the spousal maintenance agreement included a requirement that the recipient attempt to financially support themselves, which is known as rehabilitative maintenance. The court may terminate maintenance if there is a rehabilitative requirement and the recipient did not make a good faith effort to obtain employment or seek a better-paying job. “Good faith effort” accounts for factors such as whether the recipient:

• Has turned down reasonable employment opportunities
• Is in the process of obtaining education or training that would qualify them for jobs
• Is at an age that would make it difficult to find new employment

In the case of in re Marriage of Brunke, the payor claimed that maintenance should be terminated because the recipient had made little effort to find a job, but the court ruled that the recipient’s age of 68 makes it unlikely that she will ever be able to get a job that would support herself.

Many drivers have an E-ZPass – known as an I-Pass in Illinois – registered to their vehicle. The transponder is convenient for passing through tolls without having to stop and throw in coins in a toll booth. Most drivers do not think about how the transponder can track their movements based on the toll roads they use. The Illinois Tollway keeps that information private but can be forced to share information on individual vehicles when they receive subpoenas. Law enforcement officials are the ones who most often subpoena I-Pass records for evidence of criminal activity. You may be surprised to learn that I-Pass records are also used in some divorce and family law cases.

Scenario

Let us say that you are paying spousal maintenance to your ex, who was unemployed at the time of the agreement. You have reason to believe that your former spouse has started a job, which would allow you to modify your maintenance payments. Your former spouse denies that they have a job to avoid any reduction in maintenance. As part of your evidence gathering, you could file a subpoena for your former spouse’s I-Pass records, which may show that they are passing through tolls at times that are consistent with going to and from a job. I-Pass records have also been used as evidence that a former spouse is cohabiting with a new romantic partner, which may allow the termination of spousal maintenance.

Privacy Concerns

Though you may not like the idea of the Illinois Tollway holding a digital record of your travel history, most people do not have anything important to hide if the record was released to a former spouse. However, WBEZ recently aired a story about how a man was able to circumvent an order of protection by filing a subpoena for his ex-girlfriend’s I-Pass records. The woman, who had a daughter with the man, received an order of protection to prevent the man from harassing her through frequent phone calls, letters to her home, and requests for police to conduct wellness checks on their daughter. The man filed a subpoena for the woman’s I-Pass records without her knowledge. The court approved the subpoena, which allowed the man to obtain:

Starting with divorce agreements created this year, people who pay spousal maintenance as part of a divorce can no longer claim those payments as a deduction on their federal income taxes. The alimony tax deduction was used as an incentive for a spouse to pay more maintenance after the divorce. Maintenance recipients will save on taxes because the payments are no longer part of their taxable income. However, they may have more difficulty negotiating a maintenance agreement with their spouses and may not receive as much maintenance as they would have when the deduction existed. There are financial strategies available during divorce that you can use as an alternative to spousal maintenance or that could replicate some of the benefits of the alimony deduction.

1. Property Division: You could forgo spousal maintenance and give the recipient spouse more marital properties instead. There is more certainty in the value of properties than in what you might pay or receive in spousal maintenance over several years. The transfer of money or assets between spouses during a divorce is non-taxable.
2. Lump-Sum Payment: The spousal maintenance could be paid as a lump sum as part of the divorce. You would be free of continuous maintenance payments and any financial ties to each other once your children are adults. However, you must determine what a fair lump-sum payment would be and have the money available to make that payment.
3. Retirement Benefits: You could use the money that you would have paid towards spousal maintenance and invest it in a retirement fund, which your spouse would receive payments from. In some situations, contributions to retirement plans can be tax-deductible. The recipient spouse would pay taxes on the money they receive from the fund but may collect more money than they would have from spousal maintenance. This plan is most effective if you are both near retirement age, so you can avoid early withdrawal penalties.
4. Charitable Remainder Trust: If you have philanthropic interests, you could create a charitable remainder trust with your spouse as the beneficiary. The fund would pay to the beneficiary for a set period of time, and the remaining money would be donated to a charity. As with the alimony deduction, the payor could receive tax deductions for the contributions, and the recipient would be taxed for the payments.

Contact a St. Charles Divorce Attorney

The changes to the federal tax law have made reaching a spousal maintenance agreement more complicated. A Kane County divorce lawyer at Goostree Law Group can help you negotiate a reasonable maintenance agreement. To schedule a free consultation, call 630-584-4800.

Source: