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Spousal Support

David Siegel: Let’s talk about spousal support, now known as maintenance, formerly known as alimony. How is that determined? How is it paid? How much? What duration? What does the court look to? What are the factors?

Jesse Barrientes: It really depends. They look at the duration of the marriage. They look at the lifestyle of the parties that they had during the course of the marriage, which means, for example, if we went on vacation 12 times a year, and we went on the yacht, and we did all these kinds of things, then the other party is entitled to live at the level of life that they had during the course of the marriage.

David Siegel: That sounds like the Jesse Barrientes life.

Jesse Barrientes: Oh, I don’t know about that, Dave. I don’t have a yacht, and I’m pretty sure I don’t take 12 vacations a year. That would be nice, it really would be. Maybe 6; I don’t know. You can’t tell for sure. So they look at that. They look at the income and the assets of both parties, and they look at whether or not one party has contributed to the other party’s education and their vocational success. So let’s say that during the marriage I worked a couple of jobs and my wife went to school, and now she’s got her master’s she’s making $200,000.00 a year and I’m making $100,000.00.

They’re going to look at that, too, because that’s an aspect, because during the course of the marriage, had it not been for that situation, that opportunity that you had, you wouldn’t be in the position that you are, so they’re going to look at that. They’re going to look at the duration of the marriage, and that’s going to determine if maintenance is appropriate, how much maintenance is going to be paid. Maintenance is appropriate. They have what they call rehabilitative maintenance.

In other words, it’s going to allow the other person to get a chance to be rehabilitated, to be able to go out there and get skills, to be employable, to make a living in order to sustain himself or herself, because a lot of times one of the parties is the one that stays home and takes care of the children, takes care of the pets, takes care of the house, and does the cooking, does the shopping – or marketing, as other people like to refer to, right? And so that person has to have an opportunity. They’ve been out of the job market for a long time sometimes, and so they need to acquire skills in order to make them employable at a certain level.

And there’s also maintenance that you have which would be temporary maintenance, which would be for a specific amount of time, that would be reviewable, dependent, again, upon the duration of the marriage and dependent upon who’s making what. So, in other words, we’re trying to equalize out that income. So maybe it’s a situation where you have to pay – I’m just going to pull a figure out of the air – $1,000.00 a month, so that our incomes are equalized. And so, dependent upon the course of the marriage, in might be two years, three years, four years, however, where it’s reviewable again, and then the party can file a petition to come back in to extend that maintenance.

What they’re going to look at – and it depends on how the judgment is drafted by a Chicago divorce attorney and all that kind of stuff – but what they’re going to really look at is, “What have I done during this course of time to improve my situation?” If I’ve done absolutely nothing, okay, even though, hey, I still am in need of the maintenance and I’ve done nothing to improve my situation, then chances are it’s going to be more difficult for me to get that to continue. If they have permanent maintenance, which is just what it sounds, but nothing is really, truly permanent, because if there’s a change, a substantial change in circumstances of the payer – that’s the person who’s paying the maintenance – or the payee – that’s the person who’s receiving it – then they can come into court on a motion and the court’s going to hear that, and make their determination based upon that unique situation.

David Siegel: And there are also statutory termination events as to maintenance.

Jesse Barrientes: Right. But before we get there I want to talk about one more thing which is important.

David Siegel: What would that be?

Jesse Barrientes: I want to talk about Isabella, Dave.

David Siegel: In terms of maintenance? Low maintenance?

Jesse Barrientes: Low maintenance? Are you sure?

David Siegel: Very low maintenance.

Jesse Barrientes: Okay.

David Siegel: As you can see.

Jesse Barrientes: I don’t know about that.

David Siegel: This is low maintenance.

Jesse Barrientes: Yeah. They have maintenance in gross, which is a sum certain.

David Siegel: A dollar figure.

Jesse Barrientes: A dollar figure. So let’s say it’s $100,000.00, and it’s payable in installments. Now, it’s good and it’s bad. It’s got two edges to that sword, which means that the termination events that we’re going to talk about don’t apply necessarily, because again, this is what you’re paying; you’re just paying it in installments, and then maintenance is it, that’s it. There’s no coming in, there’s no getting it modified. We’re done.

David Siegel: Non-modifiable.

Jesse Barrientes: Non-modifiable. And the danger for that for the payer, the guy who’s paying it, is two-fold. Number one, what if my position changes and I can’t afford to pay? I’ve got to pay it. I mean, that’s what it is. What if one of those termination events kicks in when normally I wouldn’t be required to pay it? Well, guess what? I still have to pay it.

David Siegel: But you do get the tax deduction as the payer, and the recipient has to pay tax on that maintenance in gross.

Jesse Barrientes: That’s absolutely right.

David Siegel: So you get that benefit, as a payer.

Jesse Barrientes: You get that benefit as a payer. And as a payee, you have to claim that on your taxes, which is something that you don’t get with child support. Sometimes what they’ll do is they’ll lump child support and maintenance together and call it unallocated support. And so, typically, the payer is able to get a tax break and write that off and take that deduction, and the payee has to claim that on their taxes. Sometimes that happens in order that the payer can pay the payee. She can get a higher amount of support because the calculations that go into the break that he gets kind of boosts his income up a little bit. And there’s what they call a fin planus; it’s a program that allows attorneys to be able to see exactly what the consequences are of putting different numbers in different columns.

David Siegel: Right. And you’re talking about things that happen in more of the complicated, high income, high net worth type of Chicago divorce cases, correct?

Jesse Barrientes: That’s right. But we can have that really in any case. It’s a little bit simpler, but yeah. Typically you have somebody where they’re really close, they’re really close in what they’re making with each other, and so you don’t have that issue.

David Siegel: So far we’ve talked about division of property, allocation of debt, and spousal support. Let’s talk about the most important thing that we see in a lot of these cases, and that is children and the issues relating to children, that being custody, support, and visitation. Let’s knock those off one at a time.

Jesse Barrientes: Custody, support, and visitation. But you know what? I don’t want to disappoint our viewers. We were talking about termination events and I want to make sure that we don’t forget to tell them exactly what that is for maintenance.

David Siegel: Okay. What are those?

Jesse Barrientes: Unless it’s agreed otherwise, it is going to be the death of the payer, the death of the payee. It’s going to be someone living on a continuing conjugal basis, which means that the person who’s receiving it with somebody else, that’s going to be able to receive that, it’s that other person’s remarriage. I mean, when you think about it, it makes sense. Or, and the last one would be completion of whatever amount of payments – if it’s maintenance in gross or if it’s reviewable within a certain amount of time, so the amount of those payments, whether or not it’s two years, three years, whatever, unless somebody comes in on a motion to extend it.

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Cost of an uncontested divorce case

Length of an uncontested divorce case

Parenting class

Court reporter

Entitlement to maintenance

Division of property

How property is divided