Is My Spousal Maintenance Modifiable?

Spousal maintenance, formerly known as alimony, is financial support paid from one spouse to the other after divorce. When there is a disparity between the incomes of the spouses, maintenance is often ordered by the Court to provide the lesser-earning spouse with a chance to build financial independence, pursue additional education or career opportunities, and maintain the quality of life enjoyed during the marriage. The Judgment of Dissolution of Marriage will lay out the terms of maintenance, and those terms will determine whether that maintenance award can later me modified.

For this reason, it is important to have an experienced family law attorney draft your Marital Settlement Agreement (MSA), which will ultimately be incorporated into your Judgment of Dissolution of Marriage. A carefully crafted MSA will ensure that you are not surprised down the road when you want to modify the maintenance you pay, or your ex wants to modify the maintenance they pay to you.

Statutory Framework of Illinois Spousal Maintenance

Under Illinois law, spousal maintenance is governed primarily by sections 502, 504, and 510 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA):

• §504: This section outlines the factors that the Court considers when determining whether maintenance is appropriate in a given case. These factors include, but are not limited to, property of the parties, earning capacity of the parties or limitations thereto, needs of the parties, and the standard of living established during the marriage. This section also lays out the formula used to calculate the amount and duration of maintenance, based on the net incomes of the parties and the length of the marriage.
• §502(f): This section allows the parties to indicate in their divorce settlement that maintenance is “non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances.”
• §510(a‑5): This section allows parties to pursue a modification or termination of maintenance, so long as they can show that “substantial change in circumstances” has occurred. This section also states that one’s maintenance obligations will terminate upon the death of either party, the remarriage of the party receiving maintenance, or the cohabitation of the party receiving maintenance on a “resident, continuing conjugal basis.”

Drafting the Marital Settlement Agreement

If you want your or your ex’s maintenance obligation to be non-modifiable, then you need to explicitly state that in your MSA. Something like, “Spouse XYZ’s maintenance obligation of $X per month for forty-two (42) months is non‑modifiable in amount and duration” would work.

Parties sometimes include a general non‑modifiability clause into an MSA, (“this Agreement shall not be modified…”), but this provision alone, may not be enough to render a maintenance obligation non-modifiable. It is best practice to ensure that maintenance is listed in the MSA as non-modifiable, if that is what the parties intend.

Case Study: In re Marriage of Januszewski

In 2016, the spouses executed an MSA that was incorporated into their divorce decree. Husband was to pay Wife $2,742 per month as “permanent maintenance.” The Agreement included broad non-modifiability provisions, but nothing specific to maintenance being non-modifiable.

In 2023, Husband petitioned to have his maintenance obligation terminated because he was about to retire. Wife then asked the Court for a declaratory judgment, basically asking the Court to throw husband’s petition out because his maintenance obligation was not modifiable, according to their MSA. The trial court denied Wife’s request, and she appealed. Wife argued that the MSA contained a non-modifiability clause, which, while it did not explicitly reference maintenance, applied to the entire agreement, and as such, included maintenance. Husband argued that since the non-modifiability provision did not explicitly mention maintenance, that it did not apply to maintenance, and as such, he was entitled to ask for a modification of his maintenance obligation due to a substantial change in circumstance (his retirement).

The Appellate Court emphasized that the MSA is a contract between the parties, and that contract interpretation follows the plain meaning of the words included in the contract. The plain meaning of the non-modifiability clause in the MSA was that the entire thing was non-modifiable, and that included the maintenance provision. Husband was out of luck – he had to continue making maintenance payments even after his retirement.

When is Maintenance Modifiable?

If you don’t state that maintenance is non-modifiable in your MSA, then it will be modifiable, pursuant to Section 510 of the IMDMA. A party can seek to increase or decrease a maintenance obligation based on a showing of a significant change of circumstances. Some examples of changing circumstances that would justify a modification include:

• Changes in employment status (losing one’s job)
• Increase or decrease in the parties’ incomes
• Health event or sudden increase in medical expenses

Reach Out to a Maintenance Modification Attorney in Chicago

Maintenance payments can be a lifeline to the lesser-earning spouse in a divorce. If you will be relying on those payments, then you need to know that your MSA has been drafted with your long-term best interests in mind.

Conversely, if sudden life changes are making it impossible for you to keep up with your maintenance payments to your ex, you will want to know that your obligation can be modified.

A good family law attorney will help craft a Marital Settlement agreement that will work for you now and in the future. The compassionate and forward-thinking lawyers of O. Long Law, LLC, are here to help you today. Contact us today to schedule a consultation.