Being a Family Law Judge in the Circuit Court of the State of Illinois not only requires vast amounts of patience, compassion, and intellect but also requires many judgment calls in divorce cases that come before the court. When parties near the end of their divorce process, their matters are typically wrapped up into a marital settlement agreement, which becomes the contract that both divorced spouses must live by once the divorce is completed. Since many different attorneys dabble in the practice of Divorce law, the quality of written marital settlement agreements varies greatly depending upon the preparer of the agreement.
On August 16, 2005, the First District Illinois Appellate Court upheld a trial court decision made by Cook County Circuit Court Judge Mark Lopez involving a determination as to whether maintenance payments (formerly referred to as “alimony payments”) from an ex-husband to an ex-wife should continue to be made. There is a provision in the Illinois Marriage and Dissolution of Marriage Act which states that, unless otherwise agreed by the parties, the obligation to pay future maintenance (alimony) to an ex-spouse terminates upon the death of either party, remarriage of the party receiving maintenance, or if the party receiving maintenance moves in with his or her “significant other.”
What do you think Judge Lopez did when he was faced with the following agreement between divorced spouses?
“Husband shall pay to wife $3,750.00 per month in maintenance for ninety-six (96) consecutive months. The maintenance payments provided for by this agreement shall terminate completely, only after the payment of all monies due to wife are paid in full, regardless of any other changed circumstances of the parties.”
“The provisions of this agreement may be modified or rescinded by the written consent of both parties; however, the parties agree that they will not petition the court for modification unless there is a substantial change in the circumstances of the parties.”
Husband made twenty-seven (27) monthly payments, then stopped because his former wife moved in with her “significant other.” The issue was whether or not the above-stated provisions in the parties’ written marital settlement agreement allowed the husband to petition for termination of maintenance because his former spouse moved in with her “significant other?”
If you were the judge, what would you have done? Should the former husband have been permitted to rely on the provision in the Illinois Marriage and Dissolution of Marriage Act which allows individuals to cease maintenance payments when their ex-spouses move in with “significant others?” Well, Judge Lopez correctly determined that the 96 monthly maintenance payments of $3,750.00 each were non-modifiable, and must be paid to the husband’s former wife, because of the language in the agreement which stated that maintenance payments shall terminate completely, “only after payment of all monies due to wife are paid in full.” Sounds easy now that you know the answer, right?
In summary, when completing your Dissolution of Marriage proceedings, and getting ready to enter into a marital settlement agreement, make certain that you have had plenty of time to review the financial terms of the agreement well in advance of the divorce completion date, and also make certain that your attorney is comfortable that the agreement correctly outlines your monthly maintenance rights or obligations.
Contact the Law Offices of Michael P. Doman, Ltd. for your divorce attorney needs.