When Can A Former Spouse File For Continuing Maintenance in Illinois?

Full question:

If my ex-wife asks for an extension of maintenance after 30 months. The divorce was granted on march 8,2007 she filed for extension on Sept 21, 2009. the judge granted her motion to be heard based on the fact that the marital settlement agreement was filed on march 19th 2007 but it was filed nunc pro tunc to march 8th. should she be able to ask for her motion to be heard given the fact that the dissolution of marriage was official as of march 8th. In the agreement it states she has to file and ask for an extension before the end of 30 months. she didn't realize she was done with maintenance till she didn't receive her final check. then she filed. by the way we are both PRO CE given the fact that i paid her fees at $27,000 and now she cant pay for an attorney. And I still owe my attorney 10K and haven't been able to pay him and my bills are all past due given the fact that she has received 62% of my income for the past 5 years and 30 months after are divorce was final.

• Category: Divorce
• Subcategory: Spousal Support
• Date: 04/07/2025
• State: Illinois

Answer:

The answer will be a matter of determination for the court, based on all the facts and documents involved. A nunc pro tunc order generally makes a fiing retroactively dated due to a court error or omission. Terms of the agreement set forth in the judgment are enforceable as contract terms, under contract law principles. Some of the factors the court may consider, among others, include whether the 30 months is stated as running from a specific date or from the beginning or end of the month, and whether weekends and holdays are computed in the time period.

The general rules of contract law follow a hierarchy of evidence when determining the terms of a vague or incomplete contract, as follows:

a) The terms stated in the discussions and writings exchanged by the parties that don't contradict the contract terms;

b) Terms implied by the current and past conduct of the parties;

c) Terms implied by industry custom and practice; and

d) Terms implied by applicable law, i.e., damages for breach, liability for negligence, jurisdiction and venue, etc.

Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, 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.

Please see the following IL court rule and statutes:

750 ILCS 5/510 (from Ch. 40, par. 510)

Sec. 510. Modification and termination of provisions for
maintenance, support, educational expenses, and property
disposition.

(a) Except as otherwise provided in paragraph (f) of
Section 502 and in subsection (b), clause (3) of
Section 505.2, the provisions of any judgment respecting
maintenance or support may be modified only as to
installments accruing subsequent to due notice by the moving
party of the filing of the motion for modification. An order
for child support may be modified as follows:

(1) upon a showing of a substantial change in
circumstances; and

(2) without the necessity of showing a substantial change
in circumstances, as follows:

(A) upon a showing of an inconsistency of at least 20%, but
no less than $10 per month, between the amount of the
existing order and the amount of child support that results
from application of the guidelines specified in Section 505
of this Act unless the inconsistency is due to the fact that
the amount of the existing order resulted from a deviation
from the guideline amount and there has not been a change in
the circumstances that resulted in that deviation; or

(B) Upon a showing of a need to provide for the health care
needs of the child under the order through health insurance
or other means. In no event shall the eligibility for or
receipt of medical assistance be considered to meet the need
to provide for the child's health care needs.

The provisions of subparagraph (a)(2)(A) shall apply only in
cases in which a party is receiving child support
enforcement services from the Department of Healthcare and
Family Services under Article X of the Illinois Public Aid
Code, and only when at least 36 months have elapsed since
the order for child support was entered or last modified.

(a-5) An order for maintenance may be modified or terminated
only upon a showing of a substantial change in
circumstances. In all such proceedings, as well as in
proceedings in which maintenance is being reviewed, the
court shall consider the applicable factors set forth in
subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and
whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving
maintenance to become self-supporting, and the reasonableness
of the efforts where they are appropriate;

(3) any impairment of the present and future earning
capacity of either party;

(4) the tax consequences of the maintenance payments upon
the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously
paid (and remaining to be paid) relative to the length of the
marriage;

(6) the property, including retirement benefits, awarded to
each party under the judgment of dissolution of marriage,
judgment of legal separation, or judgment of declaration of
invalidity of marriage and the present status of the
property;

(7) the increase or decrease in each party's income since
the prior judgment or order from which a review,
modification, or termination is being sought;

(8) the property acquired and currently owned by each party
after the entry of the judgment of dissolution of marriage,
judgment of legal separation, or judgment of declaration of
invalidity of marriage; and

(9) any other factor that the court expressly finds to be
just and equitable.

(b) The provisions as to property disposition may not be
revoked or modified, unless the court finds the existence of
conditions that justify the reopening of a judgment under
the laws of this State.

(c) Unless otherwise agreed by the parties in a written
agreement set forth in the judgment or otherwise approved by
the court, 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.

(d) Unless otherwise provided in this Act, or as agreed in
writing or expressly provided in the judgment, provisions
for the support of a child are terminated by emancipation of
the child, or if the child has attained the age of 18 and is
still attending high school, provisions for the support of
the child are terminated upon the date that the child
graduates from high school or the date the child attains the
age of 19, whichever is earlier, but not by the death of a
parent obligated to support or educate the child. An
existing obligation to pay for support or educational
expenses, or both, is not terminated by the death of a
parent. When a parent obligated to pay support or
educational expenses, or both, dies, the amount of support
or educational expenses, or both, may be enforced, modified,
revoked or commuted to a lump sum payment, as equity may
require, and that determination may be provided for at the
time of the dissolution of the marriage or thereafter.

(e) The right to petition for support or educational
expenses, or both, under Sections 505 and 513 is not
extinguished by the death of a parent. Upon a petition filed
before or after a parent's death, the court may award sums
of money out of the decedent's estate for the child's
support or educational expenses, or both, as equity may
require. The time within which a claim may be filed against
the estate of a decedent under Sections 505 and 513 and
subsection (d) and this subsection shall be governed by the
provisions of the Probate Act of 1975, as a barrable,
noncontingent claim.

(f) A petition to modify or terminate child support,
custody, or visitation shall not delay any child support
enforcement litigation or supplementary proceeding on behalf
of the obligee, including, but not limited to, a petition
for a rule to show cause, for non-wage garnishment, or for a
restraining order.

Rule 13.3. Filing, Service and Assignment.

(a) Filing, Required Documents

(i) Pre-Judgment Cases — All pre-judgment Domestic Relations cases
shall be commenced by filing with the Clerk of the Circuit Court of Cook
County a praecipe, petition or other pleading conforming to Illinois
statutes and court rules, accompanied by the following:

A Domestic Relations Cover Sheet;

A Certificate of Dissolution or Invalidity of Marriage as required by
750 ILCS 5/707 in cases involving dissolution or invalidity of marriage;
and

The applicable filing fee as published by the Clerk of the Circuit Court.

(ii) Post-Judgment Cases — All post-judgment Domestic Relations cases
shall be commenced by filing with the Clerk of the Circuit Court of Cook
County a petition, motion or other pleading conforming to Illinois
statutes and court rules and accompanied by the applicable filing fee, if
any, as published by the Clerk of the Circuit Court.

(iii) Joint Simplified Dissolution of Marriage — The following forms,
as approved by the Presiding Judge of the Domestic Relations Division,
shall be filed to obtain a Joint Simplified Dissolution of Marriage:

Joint Petition for Simplified Dissolution of Marriage;

Affidavit in Support of Joint Petition for Simplified Dissolution of
Marriage;

Agreement for Joint Simplified Dissolution of Marriage; and

Judgment for Joint Simplified Dissolution of Marriage.

Pursuant to 750 ILCS 5/457, the Clerk of the Circuit Court of Cook
County may provide to interested persons, upon request, the above forms
and a brochure approved by the Presiding Judge of the Domestic Relations
Division setting forth the procedures and requirements for obtaining a
Joint Simplified Dissolution of Marriage.

(b) Service — Service of praecipes, petitions, motions and other
pleadings shall be in accordance with the law governing same.

(c) Assignment — Original petitions shall be randomly assigned to
either a team of judges or to an individual calendar judge. Each team
shall be identified by letter, and the calendar of the preliminary judge
shall bear the letter of the team. Each individual calendar shall be
identified by number. Judicial teams and individual calendar judges
shall each be responsible for all aspects of the cases assigned to them.

(i) Post-Judgment Cases — Post-judgment matters shall initially be
assigned as follows:

a. Any post-judgment motion or petition arising from a judgment entered
in a case assigned to a team of judges shall be assigned to the judge
presently designated as that team's post-judgment judge.

b. Any post-judgment motion or petition arising from a judgment entered
in a case assigned to an individual calendar judge shall be assigned to
that same individual calendar.

c. Any post-judgment motion or petition that cannot be assigned to a
post-judgment judge pursuant to paragraphs (a) and (b) above shall be
randomly assigned by Order of the Presiding Judge of the Domestic
Relations Division.

(ii) Dismissed Cases — Any domestic relations case between the same
parties that is re-filed after a dismissal shall be assigned to the same
judicial calendar to which the prior case was assigned immediately before
its dismissal. The parties and/or their attorneys shall inform the
Office of the Presiding Judge of the Domestic Relations Division that the
cause is a re-filed matter.

(d) Individual Calendars — Judges assigned to suburban Domestic
Relations Division calendars are designated Individual Calendar Judges
and shall hear all aspects of cases assigned to them, including
pre-judgment, trial, and post-judgment matters.

(e) Commencement in and Transfer to Suburban Locations — Domestic
Relations Division actions may be filed in and transferred to suburban
municipal district court locations as follows:

(i) Original Filing — Original Domestic Relations cases may be filed at
the designated suburban municipal district court locations if at least
one of the parties resides within the geographical boundaries of the
respective suburban district. These cases filed shall receive a suburban
"D" case number designating the courthouse location by the municipal
district number.

(ii) Default Prove-Ups — Default prove-ups pending on calendars in the
Richard J. Daley Center, in which at least one of the parties resides
within the geographical boundaries of the suburban district, may be
transferred to such suburban municipal district court location for
hearing upon motion by the petitioner.

(iii) Uncontested Causes — Uncontested causes pending on calendars in
the Richard J. Daley Center, in which at least one of the parties resides
within the geographical boundaries of the suburban district, may be
transferred to such suburban municipal district court location for
hearing upon agreement of the parties.

(iv) Contested Pre-Judgment Matters — Contested pre-judgment matters
pending on calendars in the Richard J. Daley Center, where a party resides
within the geographical boundaries of the suburban municipal district,
may be transferred to such municipal district court location upon
agreement of both parties and a finding of good cause by the Presiding
Judge of the Domestic Relations Division.

(v) Post-Judgment — Where judgment in a case is entered in the Richard
J. Daley Center, post-judgment matters may be transferred to the suburban
municipal district court location in which a party resides upon agreement
by the parties and a finding of good cause by the Presiding Judge of the
Domestic Relations Division.

(vi) In the event a party moves to another court district during the
pendency of any proceeding, the cause may be transferred to that district
upon agreement of both parties and a finding of good cause by the
Presiding Judge of the Domestic Relations Division.

(f) Removal to Daley Center — Domestic Relations Division actions may
be transferred from suburban municipal district court locations to the
Richard J. Daley Center as follows:

(i) Pre-Judgment Cases — Removal of a pre-judgment case filed within a
suburban municipal district shall occur by the sole action of the
Respondent when the Respondent files an appearance, together with the
District Transfer form. The appearance fee in the suburban district
shall be waived if Respondent provides proof that Respondent has filed a
case in the Richard J. Daley Center. Upon a motion to consolidate where
there is a case pending in the Richard J. Daley Center, the pre-judgment
case shall be transferred from the suburban district to the Presiding
Judge of the Domestic Relations Division to be consolidated with the
prior pending matter in the Daley Center. Cases removed from the suburban
municipal district pursuant to this paragraph shall be transferred to the
Presiding Judge of the Domestic Relations Division in the Richard J.
Daley Center for random assignment to a team or individual judicial
calendar within the Richard J. Daley Center. Such a transfer shall not
be deemed an exercise of statutory rights for Substitution of Judge.

(ii) Post-Judgment Cases — Post-judgment matters will remain in the
suburban municipal district court to which the case is assigned unless
objected to by one of the parties and a finding of good cause for removal
is made by the judge presiding over the matter in the suburban municipal
district in which the case was last pending. If neither party resides in
the suburban municipal district when the post-judgment matter is filed,
either party may have the matter removed, without a showing of good
cause, to the Richard J. Daley Center or to such other district or
jurisdiction as is appropriate under 750 ILCS 5/511. Cases removed from
suburban calendars pursuant to this paragraph shall be transferred to the
Presiding Judge for reassignment within the Domestic Relations Division
in the Richard J. Daley Center. Such a transfer shall not be deemed an
exercise of statutory rights for Substitution of Judge.

(g) Independent Orders of Protection

(i) When an independent order of protection is filed in the Richard J.
Daley Center or 555 West Harrison Street and there is a domestic
relations matter pending in a suburban district, the order of protection
shall be consolidated with the pending domestic relations matter after
the hearing on an emergency order of protection.

(ii) When an independent order of protection is filed in a suburban
district and there is a domestic relations matter pending in the Richard
J. Daley Center, the order of protection shall be consolidated with the
pending domestic relations matter after the hearing on an emergency order
of protection.

(iii) The provisions of paragraph (e)(i), the removal of pre-judgment
cases to the Daley Center, shall not apply to independent petitions for
civil orders of protection arising under the Illinois Domestic Violence
Act, unless an independent order of protection is relating to a domestic
relations matter filed at any time.

(iv) Notwithstanding any contrary provisions in these Rules, if an
independent petition for an order of protection is filed in a district or
555 West Harrison Street at any time, the judge presiding over the
petition in the district or 555 West Harrison Street shall have the
discretion to retain the independent petition for order of protection in
the district or 555 West Harrison Street until the independent petition
is adjudicated by entry of an interim or plenary order of protection or
order of dismissal, regardless of the subsequent filing of a domestic
relations matter in another district.

(v) Nothing in this Section shall prevent any petitioner from filing an
independent petition for an emergency order of protection in accordance
with the provisions of the Illinois Domestic Violence Act.

(h) Filing — Initial and subsequent pleadings for cases pending in the
Richard J. Daley Center may be filed in the Office of the Clerk of the
Court in any of the suburban municipal districts and will be transmitted
by the Clerk to the Richard J. Daley Center or at any other office of the
Clerk of the Circuit Court of Cook County. Initial and subsequent
pleadings for cases pending on a suburban district calendar shall be filed
in the Office of the Clerk of the Court in the suburban municipal
district where the case is pending or in the Richard J. Daley Center and
the Clerk will transmit such pleading to the appropriate suburban
municipal district location.

(i) Substitution of Judge — Nothing within this rule shall limit any
party's rights to substitution of judge pursuant to 735 ILCS 5/2-1001.
However, any request granted for substitution of judge from a suburban
municipal district calendar judge shall result in a transfer of the case
to the Presiding Judge of the Domestic Relations Division for
reassignment.

(j) Depositions Arising from Out of State Cases

(i) Petitions to issue subpoenas for depositions in cases pending in
foreign jurisdictions shall be presented to the Presiding Judge of the
Domestic Relations Division pursuant to Illinois Supreme Court Rule 204.

(ii) The Petition to issue a subpoena requiring a deponent to appear
for a deposition in such a matter will only be heard after paying the
applicable filing fee with the Clerk of the Circuit Court, obtaining a
case number, and presenting a Petition for Issuance of Subpoena.

(iii) Such Petition shall be presented upon proper notice to the
putative deponent in accordance with local notice rules.

(k) Random Assignment — When an action is transferred to the Presiding
Judge of the Domestic Relations Division pursuant to General Order 1.3 of
the Circuit Court of Cook County, the Presiding Judge, or his/her
designate, shall order the Clerk to randomly assign the case to an
appropriate calendar unless the court finds that the matter should be
assigned to a calendar where there is an existing related matter.

(l) Reassignment

(i) All cases that are transferred for reassignment, except for
reassignment due to a substitution of judge, shall be first transferred
directly to the Presiding Judge of the Domestic Relations Division, who
shall then either order the Clerk to randomly assign the case or transfer
the case to a different calendar.

(ii) Transfers within a team calendar shall be determined by the
preliminary judge of the team calendar for further assignment.

(m) Out of County Transfer — When a party petitions the court to
transfer a pending case to a different county, the judge to whom the case
is assigned shall rule on the motion to transfer. If the motion is
granted, the case shall be assigned to the Presiding Judge of the
Domestic Relations Division or his/her designate for transfer to the
appropriate jurisdiction. Before the case may be transferred, all
applicable fees, including the fee to transfer the case, shall be paid or
waived through the Office of the Clerk of the Circuit Court. The moving
party shall pay all transfer fees unless otherwise determined by the
court.

(n) Consolidation of Cases

(i) A motion to consolidate cases pending on separate calendars within
the Domestic Relations Division shall be heard by the Presiding Judge of
the Domestic Relations Division.

a. Cases consolidated pursuant to subparagraph (i) above shall be
assigned to the calendar to which the case with the lowest docket number
was assigned, unless determined otherwise by the Presiding Judge of the
Domestic Relations Division. In the event an emergency order of
protection is filed and a domestic relations matter is pending, the
emergency order of protection shall be heard by the domestic relations
judge before whom the domestic relations case is pending, unless
impracticable. In that event, the emergency order of protection shall be
heard by another domestic relations division judge, but shall be made
returnable to the judge before whom the domestic relations case is
currently pending.

b. Pending independent orders of protection shall be consolidated into
the domestic relations case pending between the same parties, and the
case shall be heard by the domestic relations calendar. In the event an
independent order of protection is filed in a suburban municipal district
before the filing of another Domestic Relations proceeding, the judge
presiding over the petition in the suburban district shall have the
discretion to retain the independent petition for order of protection in
the suburban district until the independent petition is adjudicated by
entry of an interim or plenary order of protection or order of
dismissal, regardless of the subsequent filing of another Domestic
Relations proceeding in the Richard J. Daley Center or the removal to the
Richard J. Daley Center by the Respondent.

(ii) A motion to consolidate a case pending in the Domestic Relations
Division with a case pending in any other Division of the Circuit Court
of Cook County shall be heard pursuant to General Order 12 of the Circuit
Court of Cook County.

(o) Substitution of Judge

(i) Motions for Substitution of Judge, if granted from an individual
calendar, preliminary calendar judge, or post-judgment calendar judge, or
the recusal of an individual, preliminary or post-judgment calendar
judge, shall result in the return of the case to the Presiding Judge of
the Domestic Relations Division for random reassignment.

(ii) Motions for Substitution of Judge, if granted from a team calendar
judge other than the preliminary judge, or the recusal of a team calendar
judge other than the preliminary judge, shall result in the return of the
case to the preliminary judge of the team calendar for further assignment
within the team, unless there are no judges available, and in that case,
to the Presiding Judge of the Domestic Relations Division for
assignment.

(iii) If a substitution of judge is taken from a judge sitting in an
individual calendar judge or preliminary calendar judge's stead, the
matter will be temporarily reassigned by the Presiding Judge of the
Domestic Relations Division. If a substitution of judge is taken from a
judge sitting in a team calendar judge's stead, the matter will be
temporarily reassigned by the preliminary judge. The temporary
reassignment shall cease pending the return of the absent judge and
returned to the regular call.

(iv) Matter of Right — A Motion for Substitution of Judge as of Right
may only be presented before the judge to whom the case is currently
assigned and pending.

a. If the judge regularly assigned to the case is absent, then the
Motion shall be continued and heard when the judge returns.

b. In cases of emergency and only for good cause shown, the Motion for
Substitution of Judge as of Right may be brought before the Presiding
Judge of the Domestic Relations Division.

(v) For Cause — A Motion for Substitution of Judge for Cause, which
properly alleges a basis for cause, shall be presented before the judge to
whom the case is currently assigned. The judge to whom the case is
currently assigned will transfer the case to the Presiding Judge of the
Domestic Relations Division who will then assign the case to another
judge in the Domestic Relations Division for hearing.

(p) Application to Sue as an Indigent Person

(i) Procedure

a. Petitions to proceed as an indigent person shall be presented and
heard by the Presiding Judge of the Domestic Relations Division if
presented before the filing of the case.

b. Petitions to proceed as an indigent person shall be presented and
heard by the preliminary judge or the individual calendar judge whom the
case is before if presented after filing, but before assignment of
trial.

c. Petitions to proceed as an indigent person shall be presented and
heard by the trial judge if presented after assignment to trial.

d. Petitions to proceed as an indigent person shall be presented and
heard by the post-judgment judge if presented after judgment is entered.

(ii) A person who is represented by a legal service provider as defined
by 735 ILCS 5/5-105.5 shall be exempt from this rule.

(iii) The Order incorporated in the application shall only take effect
upon the filing of a proper petition with the Clerk of the Circuit Court
of Cook County.

(iv) Duration of Orders under Illinois Supreme Court Rule 298

a. Any order entered by a Domestic Relations Court upon an application
to sue or defend as a poor person pursuant to Illinois Supreme Court Rule
298 shall only be effective for ninety (90) days prior to the filing of
any Petition in the Domestic Relations Division.

b. In the event that any person does not file a Petition within ninety
(90) days subsequent to the entry of an order pursuant to an application
to sue or defend as a poor person under Illinois Supreme Court Rule 298,
that person shall be required to fill out a new application to sue or
defend as a poor person in the event ninety (90) days have expired since
a prior application to sue or defend as a poor person was submitted to
the Court.

(v) Procedure for giving Notice by Publication — A person applying to
sue or defend as an indigent person may also apply to have the fee waived
for giving Notice by Publication. Such fee waiver shall be presented to
the judge before whom the case is assigned.

a. In the event the fee waiver is granted, the person shall fill out
the appropriate fee waiver form and present it to any newspaper of
general circulation.

b. If the case is in the suburban municipal district, the fee waiver
form may be transmitted by facsimile to the Presiding Judge of the
Domestic Relations Division at the Richard J. Daley Center.

(vi) Before entry of any judgment for dissolution, legal separation,
declaration of invalidity of marriage, determination of custody,
parentage or any other matter within the jurisdiction of a judge in this
division, the court shall inquire as to whether the Petitioner or
Respondent has been allowed to proceed as a poor person. Where the court
determines that either party is able to bear the costs previously
deferred, it shall assess such costs against the appropriate party and
direct payment forthwith to the Clerk of Court, Sheriff, or other officer
to whom fees or charges are due.

750 ILCS 5/502 (from Ch. 40, par. 502)

Sec. 502. Agreement. (a) To promote amicable settlement of
disputes between parties to a marriage attendant upon the
dissolution of their marriage, the parties may enter into a
written or oral agreement containing provisions for
disposition of any property owned by either of them,
maintenance of either of them and support, custody and
visitation of their children.

(b) The terms of the agreement, except those providing for
the support, custody and visitation of children, are binding
upon the court unless it finds, after considering the
economic circumstances of the parties and any other relevant
evidence produced by the parties, on their own motion or on
request of the court, that the agreement is unconscionable.

(c) If the court finds the agreement unconscionable, it may
request the parties to submit a revised agreement or upon
hearing, may make orders for the disposition of property,
maintenance, child support and other matters.

(d) Unless the agreement provides to the contrary, its
terms shall be set forth in the judgment, and the parties
shall be ordered to perform under such terms, or if the
agreement provides that its terms shall not be set forth in
the judgment, the judgment shall identify the agreement and
state that the court has approved its terms.

(e) Terms of the agreement set forth in the judgment are
enforceable by all remedies available for enforcement of a
judgment, including contempt, and are enforceable as contract
terms.

(f) Except for terms concerning the support, custody or
visitation of children, the judgment may expressly preclude
or limit modification of terms set forth in the judgment if
the agreement so provides. Otherwise, terms of an agreement
set forth in the judgment are automatically modified by
modification of the judgment.