Spousal Support Basics: Do I Have to Pay My Spouse After We Divorce?

By: Janice Dantes

 

During a happy marriage, couples are willing to share their lives and their wealth with their spouse. However, after the demise of the relationship, the couple is much less willing to share, especially if one spouse has a continuing financial obligation to the other. While it is most common to see a husband paying his wife spousal support, breadwinning wives have had to pay their ex-husbands spousal support (e.g. Britney Spears and Kevin Federline). Below are spousal support basics and how to best manage these obligations:

1. What is Spousal Support? Spousal support, previously known as alimony, is called maintenance in Illinois. Maintenance is generally described as monthly payments paid to the lower earning spouse during and/ or after a divorce to allow the lower earning spouse to “maintain” the lifestyle they would have enjoyed had the marriage not dissolved. The history of this law came about during a time when there were limited opportunities for women to work outside the home. This law was designed to prevent husbands from divorcing their wives and leaving them destitute and on the streets. Much of the case law I have read on this law involves the husband in medical school with the doting wife working to put him through medical school. The husband then becomes a doctor earning a substantial income. The wife decides to put her career aside and supports her husband’s career only to have her husband leave her for another woman. The current maintenance law does not distinguish between genders. I have had cases of women paying maintenance to their husbands. Spousal support is an incredibly contentious issue in many of my cases. I always advise clients to provide a lump sum payment to their spouse rather than pay maintenance. This way, there are fewer financial entanglements after the divorce and the spouse paying maintenance does not have the stress related to either a substantial decrease in income, job loss, or a substantial increase which could result in the exspouse seeking more support.

2. Tip #1 for Managing Maintenance: Get a Prenuptial Agreement. Illinois has a really strong prenuptial agreement law. If you do not want to pay maintenance to your spouse, you can write that into a prenuptial agreement. There is no guarantee that a prenuptial agreement will protect you 100%, however doing nothing will guarantee that maintenance will be on the table in a divorce. Many courts will uphold the prenuptial agreement so long as the terms are fair and reasonable.

3. Tip #2 for Managing Maintenance: Marry a True Partner. So many couples fall in love and marry the first person who expresses interest in them. I truly feel sad that there are so many people with such low self-esteem that they essentially settle for anyone. Maintenance payments are most common in married couples with a Parent/Child relationship. I see the insecure husband with a hero complex who marries a needy woman who cannot do anything for herself. He feels suffocated and leaves her. Then he is surprised that he may have to pay maintenance. I also see the over-functioning Type A superwoman (“Wendy”) married to Peter Pan/Disneyland Dad, the husband who does not want to grow up. She becomes tired of the unequal contribution and wants to leave. Then she is surprised she may have to pay maintenance. The lopsided relationships typically have a lot of friction and maintenance obligations. Try to avoid these kinds of marriages.

4. Tip #3 for Managing Maintenance: Open a 401K for the Lower Earning Spouse. One of the reasons maintenance is ordered in a divorce case is because the parties have so few assets to divide. If the higher earning spouse is able to offer the lower earning spouse a lump sum of funds to allow the lower earning spouse to get back on their feet, they can avoid maintenance payments. One of the simplest things the higher earning spouse can do is open a 401K for the lower earning spouse. This allows funds to grow and can substantially defray any maintenance obligations.

If you would like to learn about your rights with regard to maintenance, please call (312) 546- 5077 or email janice@pinaylaw.com.

Thank you for reading. Until we meet again, love one another.