Divorce Lawyers New York - Recent Family Law Decisons (28)
RECENT FAMILY LAW DECISIONS (28)
Standard
The discretionary standard for modification of maintenance found in subsection (a) of this section is essentially unchanged from its applications under the former Divorce Act.
Need of Support
A shown need for support cannot be controlling and in itself sufficient to defeat a petition to terminate maintenance when all other factors demonstrate an ongoing, conjugal relationship to exist.
Paramour
A divorced spouse should not be required to support the other spouse’s paramour.
Party Agreement
Maintenance agreements may be modified or terminated under circumstances stated in statutory provisions, unless the parties’ intent is clearly manifested in such agreement to limit or preclude such judicial modification or termination.
If the language of the agreement does not expressly preclude or limit modification of its terms, it is error to hold the maintenance nonmodifiable.
The parties may agree that reductions or termination of maintenance can only occur under specific circumstances, regardless of “good faith,” and that their agreement controls.
The mandate of this section, as it applies to future maintenance, cannot be avoided by agreement between the parties.
The only limitations placed on the parties’ freedom to fashion their own property and maintenance agreements are that the end product to be incorporated into the divorce decree may not be so unjust as to be unconscionable and the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.
Past Due Installments
Since a court has no power to modify past due installments of maintenance a petition for modification or termination would only apply to payments owed subsequent to the date of the filing of the petition.
Permanent
An award permanent maintenance in a dissolution proceeding containing no provision for modification review was deemed an abuse of discretion by the trial judge.
Where an agreement characterized the maintenance as a “permanent,” this term may also be used simply to distinguish permanent maintenance from temporary maintenance awarded during the pendency of a dissolution action; such as when the agreement was too vague to establish that the parties in tended to contravene the general policy of Illinois and provide for continuing maintenance payments after the former wife’s remarriage.
There is no language in this section which prohibits modification of a permanent maintenance award, and such awards are therefore modifiable.
