Upon divorce, courts in Illinois typically award one of three types of maintenance to a spouse who is not self-sufficient: rehabilitative, reviewable, or permanent. Permanent maintenance is an indefinite award typically provided in long-term marriages where one of parties is employable only at a low income level compared with the previous standard of living. Rehabilitative maintenance is provided for a limited number of years and is designed to provide support while the recipient obtains the training or education needed to gain entry into the workforce.
Reviewable maintenance, the focus of this article, is awarded to a spouse for a specific number of months or years, at the end of which the court is to review the award and decide whether or at what level maintenance is to continue. The purpose of the review is to allow a court to assess the financial circumstances of the parties at the end of the review period and determine whether there is a need to extend the initial maintenance award. A party seeking to extend a maintenance award at a designated review point has the burden of demonstrating that an extension of the initial maintenance period is warranted. The Court must consider a number of relevant factors in assessing whether to grant an extension of maintenance.
HAS THE SPOUSE TRIED TO BECOME SELF-SUPPORTING?
One of the primary factors upon which reviewable maintenance cases turn is the effort undertaken by the recipient spouse to become self-supporting -- and the reasonableness of that effort. Many reviewable maintenance cases closely examine whether the spouse receiving maintenance has made a good faith effort to achieve some level of financial independence. This is significant because the failure of a person receiving maintenance to make such good faith efforts to achieve financial independence can be the basis for reducing the maintenance, or in some cases terminating it.
In Illinois, a spouse cannot use self imposed poverty as a basis for claiming a need for maintenance when she or he has the means of earning more income; in other words, a spouse requesting maintenance has an affirmative duty to seek and accept appropriate employment. This holds true even where the earning potential and employment prospects of a spouse pale in comparison to those of the other spouse. In cases where a healthy, currently unemployed spouse is fully educated, with easily marketable skills and a history of gainful employment in a field, that party is required to seek and accept such employment whether or not he or she enjoys it. Further, a spouse may have to accept employment that, while not being ideal, provides some ability to contribute to his or her own living expenses.
There are exceptions to the requirement that a spouse must obtain employment. Such exceptions typically arise in situations where health issues prevent a spouse from holding down a full or part time job, or where responsibilities to younger children prevent a spouse from seeking and obtaining employment outside the house. Courts treat medical issues with concern if the they are serious. Further, Courts equally understand the importance of one spouse staying at home to care for minor children where the parties’ financial circumstances allow that to occur.
WHAT ATTORNEYS MUST TELL THEIR CLIENTS
In light of the obligations imposed upon a spouse seeking to extend a reviewable maintenance award, a lawyer whose client agrees to a reviewable maintenance provision in a marital settlement agreement or is awarded reviewable maintenance by the court must inform the client of the obligations attendant on that form of spousal support. A client should be informed that he or she must make reasonable efforts to obtain employment and that those efforts must be credibly documented, which means retaining copies of cover letters, job applications, resumes submitted to prospective employers, and all responses. In today’s internet age, many people apply for jobs online, and clients should be counseled to print job applications they post through websites such as Monster.com and Careerbuilder.com. Litigants who testify to applying for various jobs with little or no verifiable documentation are often viewed with skepticism.
Further, since “good faith” is typically the standard imposed upon a spouse when seeking and accepting appropriate employment, he or she must demonstrate that the efforts undertaken were reasonable and legitimate. That may include counseling a client to meet with a career counselor, job recruiter, and/or headhunter. Courts typically apply a litmus test when looking at the reasonableness of the applicant’s efforts, asking why the party does not have a job, and exploring whether he or she utilized all possible avenues for obtaining employment, including seeking outside professional help. Again, most courts will apply a reasonableness standard to the analysis and will expect a reviewable maintenance candidate to take the same or similar steps that an unemployed person needing and wanting a job would likely undertake.
To the extent the client has younger children, making it difficult to obtain full time employment by the time the review period expires, then he or she should be counseled to keep some type of a general diary describing what they have done with their time, including how much of their time has been devoted to the children’s educational, social, and athletic activities as well as attending to any medical needs that the children have. Again, documentation is the best evidence of such facts, and a calendar or diary describing these things can be compelling, as will school calendars, athletic schedules, or brochures for extracurricular activities.
It often occurs in reviewable maintenance cases that spouses attempt to claim that a physical and/or mental condition precludes them from seeking and maintaining employment. Those allegations, without concrete medical testimony, can be easily refuted. To the extent a client suggests that he or she has serious physical or emotional problems that have prevented employment during the period of review and continue to do so, then a qualified physician or mental heath professional should be disclosed to render medical opinion testimony supporting the client’s inability to work. Going to trial without any expert support for a client’s self serving statements about physical or mental health problems can make those allegations appear disingenuous at trial.
While a typical maintenance review period lasts somewhere between three and five years, preparing for the extension of maintenance begins the day the judgment is entered. Counseling a client how to prepare for a hearing that will be three to five years away helps to place them in a position that will more likely result in an extension of the maintenance award. Further, such preparation protects an attorney from criticism by clients who question why they were not advised of the need for good faith efforts to find employment, including adequate and detailed record-keeping on the subject of their post judgment efforts at gaining financial independence.