What Is Alimony?

While alimony refers to the court-ordered payment(s) awarded to a spouse or ex-spouse in a divorce or legal separation agreement and is meant to provide financial support to the party which makes a lower income, the term is a bit antiquated. The proper term used by most divorce lawyers for a legal separation or divorce in Illinois is simply-- maintenance or spousal support. The idea behind maintenance (alimony) is to provide the lower-income spouse with enough support to provide them with a similar standard of living enjoyed during their marriage.

Most people going through a divorce or legal separation for the first time have many questions about alimony (maintenance). The alimony definition of ‘court-ordered payments awarded to an ex-spouse in a divorce’ doesn’t mean much to the general public. So, let’s dig deeper and answer some of the most popular questions we see our clients ask us at our family law firm, Weiss-Kunz & Oliver, LLC.

What Is The Difference Between Alimony and Spousal Support?

In a word, none. There is no difference between alimony and spousal support. Alimony is derived from the Latin word ‘alimonia’ meaning nutriment and spousal support is simply a more modern and gender-neutral term for the support of an ex-spouse (or spouse in the case of a legal separation or while a divorce is pending). The most common word used by most family law attorneys in Illinois is simply, maintenance (short for spousal maintenance or spousal support).

How Is Alimony Calculated?

Determining how much alimony or maintenance is owed is quite complicated and often becomes a core issue in most of the divorce cases we see. While there are alimony calculators and tables to help define how alimony is determined, a possible average alimony payment amount, and the number of alimony payments that may be expected, it does come down to a case by case basis. So how is alimony calculated? In short, the court either uses the guidelines set out in the statutory section 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) or they deviate up or down based on legal arguments related to the different factors laid out under ‘entitlement’ in the same statute. Sometimes the court will even order temporary alimony, called alimony pendente lite, designed to provide support during the divorce or legal separation process to ensure that each spouse can maintain their standard of living while the legal arguments are carried out and alimony is defined.

How Does Alimony Work?

If alimony/maintenance is court-ordered, then payments will be sent/received for a specific amount each month. Sometimes alimony payments are made weekly or bi-weekly. The alimony payments will continue until one of the following criteria are met: a specific court-appointed date is reached, the former spouse receiving alimony payments gets remarried, the former spouse cohabitates with another adult as defined by the statute, or a judge determines the ex-spouse receiving alimony payments has not made a sufficient effort to become self-supporting. Other scenarios can also play into how alimony works. For example, alimony or maintenance, as commonly called, may be changed due to some significant event such as retirement or significant change in employment. Another example that may impact how long alimony may last is whether children from marriage need a full-time parent at home. And of course the death of either party would terminate alimony payments. We’d be happy to discuss your specific scenario and let you know how alimony may work in your divorce or legal separation.

How Long Do You Have to Be Married to Get Alimony or How Long Do You Have to Pay Alimony?

In most cases how long alimony must be paid is a factor of the length of the marriage. If the marriage was less than 5 years, alimony or maintenance typically lasts a year or less. Sometimes alimony payments may not be ordered by the family courts at all for very short marriages. With marriages that are longer than five years, the divorce alimony rules determining how long you have to pay (or how long you are entitled to receive) are typically based on a 4% increase in time for each year of marriage. So how long does alimony last? Here’s a quick way to look at it. If you were married less than 5 years, then maintenance will last about 20% of the duration of the marriage (or less than a year). If you were married precisely five years, then the percentage is moved to 24%, married six years the rate is increased to 28% of the duration of the marriage, etc. Thus, a union of 10 years would have an alimony duration of 4.4 years. Every marriage is different, but the above is a general guide until you reach 20 years of marriage. While 19 years of marriage would have a factor of 80% of the duration of the marriage resulting in alimony payments for about 15.2 years, alimony after 20 years of marriage is treated differently. In marriages lasting over 20 years, the court may order alimony or maintenance for the duration of the marriage or possibly for life. So, even though there are great guidelines to help determine how long alimony may last, it is still best to seek professional advice from a seasoned divorce attorney like Weiss-Kunz & Oliver, LLC.

Is Alimony Taxable or Is Alimony Tax Deductible?

This used to be a straightforward answer. However, since 2018 there’s a new tax law, and alimony can now be considered income in some cases. Therefore, now one of the most common questions we see about alimony is taxation. In essence, our clients want to know, “Is alimony taxable?” When comparing alimony vs child support regarding tax matters, remember that child support is never deductible but whether or not alimony is taxable becomes a bit more confusing.

While we always refer a client to their accountant for absolute clarity, generally, if your divorce or separation agreement was executed after 2018, then the alimony payments received are not taxable and not included in your gross income. The same is true for those paying alimony; payments made cannot be deducted from the income of the person paying the alimony for any divorce or separation agreement executed after 2018. There are nuances here though, for example, if there was a modification after 2018 to a divorce executed prior to 2019 then there are factors that need to be looked at in detail. Further, if there are child support payments and alimony/maintenance payments involved but some of the payments were not made, then the child support payments (which, again, are never taxable) get applied before the alimony payments (which generally are taxable/deductible after 2018). The IRS has a great resource page to help discover what may apply to your specific divorce case. But, taxation in regards to alimony or maintenance is something we recommend seeing a professional about to take into consideration your exact situation. Know that Weiss-Kunz & Oliver, LLC has experience in this area to assist you if you choose to work with us on your specific alimony tax deduction questions.

What To Do When Court-Ordered Alimony Is Not Being Paid

There are many options to take when the other party thinks they discovered how to get out of alimony. How to fight alimony non-payment is complicated and most definitely will require a consult with an alimony lawyer to determine the best path to get your alimony received as court-ordered. Weiss-Kunz & Oliver, LLC has helped many clients determine a strategy on how to fight alimony complications which may arise after a divorce.

How to Avoid Alimony

The best course of action to avoid alimony payments is having a quality prenuptial agreement (premarital agreement) before you marry or creating a post-nuptial agreement during the marriage. Prenuptial or post-nuptial agreements have provisions in them regarding how long you have to pay alimony, whether to use automatic payments or write an alimony check each month and what the typical alimony payments would be. Even nuanced situations regarding how to get alimony if one party moves out of state or even to another country can easily be covered in prenuptial or post-nuptial agreements. Weiss-Kunz & Oliver, LLC recommends that everyone planning to get married or even already married create a prenuptial or post-nuptial agreement. It is usually much easier to come to rational agreements during a loving relationship than when going through a legal separation or divorce. If you and your spouse or spouse-to-be are ready to create a prenuptial or post-nuptial agreement, let us know. We can have an agreement drafted quickly and thoroughly.