The award of maintenance is a two-step process: (1) determination of whether a party is entitled to maintenance; and, if the party is so entitled, (2) determination of the amount and duration of the award. Previously, the court was directed, among other factors, to consider the present and future earning capacity of each party in determining whether maintenance is appropriate. Now however, the Act specifically directs the court to consider the “realistic” present and future earning capacity of each party. Furthermore, the Act now also requires the court to consider disability and retirement income in its determination of whether maintenance is appropriate.
The Act sets forth guidelines for determining the amount and duration of the maintenance award. These guidelines are only applied when the combined gross income of the parties is less than $250,000. In addition, the Act also stipulates that the maintenance payor must have no other child support or maintenance obligation, or both, from a prior relationship for said guidelines to be applied. If the guidelines are applicable, the duration is to be calculated by multiplying the length of the marriage in years by a number that is enumerated by the Act. The new Act clarifies that the length of the marriage is to be determined from the date of the marriage until the date the dissolution action was commenced. Therefore, the time in which the dissolution of marriage is pending is not included in the court’s calculation as it relates to the duration of the maintenance award.
Unless stipulated by written agreement in the Judgment for Dissolution of Marriage or otherwise approved by the court, maintenance terminates upon the maintenance recipient remarrying or cohabitating with another person on a resident, continuing conjugal basis. The Act provides that the maintenance will terminate by operation of law on the date of the remarriage or date the court finds the cohabitation began. The Act further provides that the payor is entitled to reimbursement for all maintenance paid from that date forward. Additionally, the new Act requires the maintenance recipient to advise the payor of his or her intention to marry at least 30 days in advance, unless the decision is made within 30 days of the remarriage. If the decision is made within 30 days of the remarriage, the maintenance recipient must notify the other party within 72 hours of getting married.
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