Modifiability of Spousal Support
Published in Chicago Lawyer Magazine, January 2010
By Daniel Stefani
Spousal support, which is known in Illinois as maintenance, is an ever-changing area in the divorce world.
On October 8, 2009, the Illinois Supreme court issued its opinion on Steven Blum v. Judy Kostner, (2009 WL 3212542 Ill.). Although the prevailing opinion of divorce attorneys and judges was consistent with Blum, there was no definitive direction from the statute or case law until now. After I read the case, I wondered whether it will create more or less litigation.
The Blum court held, in part, that absent an express agreement between the divorcing parties, Sections 502(f), 504 and 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) do not permit the court to make a maintenance award nonmodifiable and nonreviewable in terms of amounts and duration unless the court orders maintenance in gross, which is more in the nature of a property settlement, and less like spousal support.
In Blum, the parties were divorced pursuant to a Marital Settlement Agreement that provided for 61 months of unallocated maintenance and child support to be paid from the ex-husband to the ex-wife. The agreement also stated that maintenance would be reviewable after the 61 months and would not terminate without a court order. At the expiration of the 61 months, the ex-husband filed a petition requesting the trial court terminate his maintenance payments because the children attained majority, he was paying their college expenses, the ex-wife’s living expenses were lower, the ex-wife was a licensed attorney who could support herself and the ex-wife had an obligation to become self-supporting under the Marital Settlement Agreement.
After an extensive review hearing, the trial court issued an order reducing the monthly maintenance amounts and limiting the duration to three years. The trial court’s order further stated that the award was in full and complete satisfaction of the payor’s obligation to pay maintenance to the payee, and other than the payments ordered, the payee was forever barred from seeking maintenance from the payor. The court went on to state that the order was nonmodifiable as to the duration and amount and could not be changed even if there was a substantial change in circumstances, and that the order was not subject to any review by the court in the future.
The Appellate Court determined that the trial court erred in reducing the payee’s maintenance and it exceeded its authority in making the payee’s maintenance award nonmodifiable and nonreviewable. The case was remanded to the trial court for further proceedings, but the Illinois Supreme Court allowed Blum’s petition for leave to appeal.
Blum argued that the trial court’s remedy was in the nature of maintenance in gross citing the case In Re the Marriage of Freeman 106 Ill.2d 290, 478 N.E.2d 326, 88 Ill.Dec. 11 (Ill. 1985). The Freeman court stated that the trial court may award maintenance in gross, which is a nonmodifiable sum certain to be received by the former spouse regardless of changes in circumstances given the absence of an agreement by the parties; however, the award of maintenance in gross is in the nature of property and creates a vested interest in the recipient immediately. The Supreme Court dismissed Blum’s position stating that Freeman involved the interpretation of a maintenance in gross award made incident to a judgment for dissolution of marriage and did not address the reviewability of fixed periodic maintenance.
The Blum court held that the IMDMA, by setting forth the conditions for modification or termination of maintenance implicitly provides that all awards of maintenance are modifiable except for maintenance in gross. The Blum court took the position that since life is so uncertain going forward, their holding allows the court to have flexibility for dealing with such changes and that making an award nonmodifiable limits the court’s ability to deal with changes in the future. There was no discussion of judicial economy concerns.
Given the Blum decision, the court is now left with simply awarding the same or reduced payments for a certain duration that will then be reviewed again by a court in a future hearing. The court can also terminate the support at a review hearing. Short of obtaining an outright termination, the court’s remedies are open-ended and fly in the face of any concept of judicial agreement, at least in terms of duration, and perhaps in terms of amount as well. The payor should be prepared to offer a longer duration than what is expected at trial in exchange for a finite termination. The drawback is obviously that the payor is obligating himself or herself to pay a guaranteed amount for a guaranteed time period even if the payor no longer has the ability to pay support in exchange for certainty. Even the payee spouse should be weary of the ever-escalating cost of litigation and the potential of an outright termination at a future review hearing. Therefore, the payee spouse should consider the benefit of making an agreement that is nonmodifiable as well.
Time will tell whether more cases settle with nonmodifiable agreements given the deterrence factor resulting from the Blum decision or whether there will continue to be review hearings regarding maintenance.