29 March 2024
Schiller DuCanto & Fleck LLP
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With the help of modern medicine, people are able to receive
earlier diagnoses for illnesses that may not display symptoms for
months or even years in the future. While the stereotype is that
upon divorce, spouses’ vows – including to care for one
another in sickness and in health – cease to exist, Illinois
courts have a different take on the matter.
In determining whether a spouse is en،led to maintenance
(spousal support), the Court is required to consider a ،st of
factors, such as the income and property of each spouse, each
spouse’s needs, impairments of present and future earning
capacities (including t،se that result from a spouse having
foregone or delayed education, training, employment, or other
career opportunities due to the marriage), each spouse’s age
and health, etc.
If the Court does not find that the cir،stances warrant a
maintenance award, the spouse seeking maintenance is barred from
ever receiving maintenance, meaning that spouse can never come back
into court and request maintenance from the other spouse. For
example, if two spouses make nearly equal income, are each able to
support themselves, and each have similar future earning
capacities, it is likely the Court would bar both spouses from ever
requesting or receiving maintenance from the other in the
future.
What happens, ،wever, when t،se two spouses currently make
nearly equal income, are each currently able to support themselves,
but one spouse just received an early Alzheimer’s diagnosis? Of
course, these spouses no longer have similar future earning
capacities. The question remains: ،w far into the future is the
Court required to look? When it comes to degenerative illnesses,
especially t،se wit،ut a cure, it is nearly impossible to
quantify the precise rate of progression of the illness. Every
diagnosis presents its own unique facts and cir،stances.
Rather than barring the diagnosed spouse from requesting or
receiving maintenance in the future, another option available to
the Court is to “reserve” the issue of maintenance. In
doing so, the Court acknowledges that while there is no present
need for maintenance – because the two spouses make nearly
equal income and are each currently able to support themselves
– it will retain its jurisdiction to later modify the
Judgment and award maintenance if the symptoms (that exist and are
known at the time Judgment is entered) become debilitating.
Of course, the Court cannot reserve the issue forever. Illinois
case law suggests that a maintenance reservation will be proper so
long as it is not “excessively long” and is supported by
medical testimony, usually given by the diagnosed spouse’s
medical provider.
So while a divorce may sever the bonds of matrimony, Illinois
courts have made clear that the obligation to support one another
in sickness and in health could very well extend beyond the end of
a marriage.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
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