Anderson: The trial court erred in terminating maintenance in assuming that the ex-wife would potentially be eligible to receive public welfare.
By Gunnar Gitlin, Family Lawyer
This case involved a 37-year marriage and a Husband who was 80 years old and unable to work due to health issues. The former husband had been unemployed at the time of the 1999 divorce and the evidence showed that his asset base was substantially reduced from the time of the divorce. The appellate court noted that, “In Connors, 303 Ill.App. 3d at 226, 707 N.E.2d at 281, the court found that in a modification proceeding, parties are allowed to present only evidence which goes back to the latest petition for modification to avoid relitigating matters already settled.” Regarding the issue of living on assets and an increase in reported gross income due to retirement account withdrawals, the appellate court stated:
“While his social security benefits have increased by $400 a month since 1999, the rest of his income consists mostly of withdrawals from his retirement funds, which are being depleted as he makes those withdrawals and according to petitioner, will last only for two years from the time of the hearing… Furthermore, while it appears that petitioner is still withdrawing the same amount from his Morgan Stanley account for himself as he did in 1999, he testified that because of the losses that he suffered during the market decline, his funds would last only two years after the date of the hearing. *** In contrast, petitioner in this case showed that over the course of 10 years, the value of his retirement account, which is one of his main sources of income, decreased from over $200,000 in 1999 to $63,000 in 2009. Unlike the facts in Dunseth, the record here does not indicate that petitioner’s source of income merely “dipped” or decreased temporarily due to the payment of special costs or temporary circumstances. Moreover, petitioner testified that he has removed his money from the market and invested it in cash and government securities, and is therefore unlikely to benefit from a potential market recovery, even if and when such a recovery may come about.
The appellate court then summarized:
In this case, respondent has not shown why a distinction should be made between a substantial change in income and a similar change in the value of an account from which income is derived. In this case, the record indicates that petitioner’s Morgan Stanley account was worth at least $200,000 at the entry of the last order, and that its value decreased to $63,000 at the time of the hearing on his motion to terminate maintenance. It is also apparent from the record that petitioner relies on that account to make his maintenance payments and for his own support. Thus, even if the value of petitioner’s Morgan Stanley account may have been uncertain and subject to fluctuation, that did not preclude petitioner from seeking termination of his maintenance obligation if he could no longer rely on that account as a source of income to make those payments. Additionally, respondent’s assertion that petitioner’s income has increased since 1999 is misleading because, as noted above, his income consists largely of withdrawals from his retirement account.
Note the discussion of the IRMO Waller decision regarding the retirement of the ex-husband at age 63 and the fact that the former husband was not successful in trying to terminate maintenance – in part since there were “bad facts.”
Respondent’s reliance on IRMO Waller, 253 Ill. App. 3d 360, 362, 625 N.E.2d 363, 364-65 (1993), is misplaced. In Waller, the court found that the maintenance payor’s retirement at age 63 was not a substantial change in circumstances that would justify termination of maintenance where he had refused employment, albeit at a lower rate of pay, and was in good health. In denying his motion to terminate maintenance, the trial court noted that while it was contemplated at the time of the judgment of dissolution that the former husband would retire, it had no provisions for reduction or termination of maintenance. It also noted that former husband lived in a house owned by his current wife and owned another house with no mortgage while the former wife had a mortgage on her condominium. In affirming the trial court’s denial, the reviewing court found that the former husband
Had not reached the customary retirement age,
He was in good health, and
His resignation was under his control. (citations omitted).
But the trial court erred in this case in in terminating maintenance in assuming that the ex-wife would potentially be eligible to receive public welfare assistance so as to enable her to live in an assisted living facility. The appellate court stated
Neither of the parties nor the court has introduced any authority to permit a court to rely upon the receipt of public welfare benefits as a substitute for spousal maintenance. In perspective, such reliance would allow a spouse to use public welfare as a substitute or supplement to his own spousal obligation and to the recipient’s spousal entitlement. While we have found a dearth of authority on this subject in Illinois, other jurisdictions have addressed this question as to and disallow the use of public welfare entitlements as a substitute for a spouse’s maintenance obligations. See Remick v. Remick, 456 A.2d 163, 167-68, 310 Pa. Super. 23, 32- 33 (1983); Safford v. Safford, 391 N.W.2d 548, 550 (Minn. Ct. App. 1986); 27B C.J.S. Divorce §612 (2005).
Regarding the issuer of potential public welfare benefits the appellate court concluded:
Thus, the trial court abused its discretion in taking into account that respondent may be eligible for public assistance, even though it acknowledged that her eligibility was uncertain. More significantly, the trial court abused its discretion in assuming that public assistance can be a substitute for a spousal obligation.
Comment: There are cases also involving second jobs and termination of maintenance which is also a mainstream issue: 17 ALR 5th, 143.
Gunnar Gitlin has exclusively practiced in divorce and family law cases for the past two decades, having been a fellow of the American Academy of Matrimonial Lawyers since 1996. He has created a state of the art database of Illinois family law cases — Gitlin on Divorce Online Research System and is a frequent lecturer to family lawyers both statewide and nationally.
© 2011, Gitlin Law Firm, P.C. For more articles by Gunnar J. Gitlin, go to www.gitlinlawfirm.com/writings.htm