The short answer is that there is no consensus, but despite a split of opinion between the Third and Fourth Districts, there is substantial support for permitting a court to order a maintenance paying spouse to maintain a life insurance policy with the maintenance receiving spouse named as the beneficiary. There are two Fourth District cases, In re Marriage of Vernon and In re Marriage of Walker, supporting the proposition while only one Third District case, In re Marriage of Ellinger, weighing against it. Additionally, the Third District relied on In re Marriage of Clarke, a Fourth District case and line of reasoning that was subsequently rejected by latter Fourth District cases. However, until the issue is resolved by the Illinois Supreme Court or the Illinois General Assembly, courts in the First, Second, Fourth, and Fifth Districts “have discretion to secure maintenance obligations with life insurance.”1

In re Marriage of Clarke: Maintenance Cannot Be Paid After The Death Of A Spouse

The line of cases begins with In re Marriage of Clarke. In In re Marriage of Clarke, a Fourth District case from 1984, the Respondent, Roberta Clarke, appealed the trial court’s ruling that Petitioner, John Clarke, was not required to provide security for his maintenance payments to her.2 she argued that

“[S]ection 510(b) provides authority for the court to order maintenance after petitioner’s death and to order petitioner to give security to enforce it. She interprets section 510(b) to authorize such maintenance if (1) ‘agreed to by the parties in a written separation agreement set forth in the judgment,’ or (2) if ‘otherwise’ ordered by the court. She contends that ‘approved’ means the same as ordered and that the phrase ‘otherwise approved by the court’ does not modify, in the alternative, the phrase ‘written separation agreement.’”3 (emphasis added)

The court rejected her argument and reasoned that “if the court has no authority to order maintenance that would extend beyond the death of the party obligated to pay the maintenance, the court has no authority to require security for the payment of maintenance after the death of the obligor.”4 The court then contrasted the current Illinois Marriage and Dissolution of Marriage Act with the preceding “An Act to revise the law in relation to divorce” and noted that, while section 18 of the latter provided for security for maintenance payments, “No such provision is contained in the present Act.”5 The court stated that “The failure to include a provision for securing maintenance in the present Act, when repealed legislation contained such a provision, evinces an intent to withdraw the authority from the court to require such security.”6 Accordingly, in In re Marriage of Clarke, the Fourth District rejected life insurance backed maintenance.

In re Marriage of Vernon: Life Insurance Payouts Do Not Constitute Maintenance Payments and Clarke’s Statutory Interpretation Was Too Narrow

The issue of providing security for maintenance obligations next appeared in In re Marriage of Vernon, heard by the Fourth District in 1993. In Vernon, the Appellant/Petitioner Carl Vernon was ordered to pay maintenance to his ex-wife, Appellee/Respondent Ruth Vernon, as well as maintain a life insurance policy with Ruth as the named beneficiary until further order of the court.7 Appellant argued that the trial court erred in ordering security for his maintenance obligation. Despite the precedent set in Clarke, the court rejected Appellant’s argument and then explicitly limited the holding in Clarke, thereby signaling a change in position. We have included the extended excerpt below.

“In Clarke, we held that a court has no authority to require security for the payment of maintenance after the death of the obligor, and that insurance on the life of the obligor would amount to such security. We decline to address the application of Clarke to this case in the absence of briefs and arguments by the parties. We do reject any implication in Clarke that such an order is a void order which may be attacked at any time, or that the erroneous entry of such an order may not be waived. Because of the disastrous consequences which follow when orders and judgments are allowed to be collaterally attacked, orders should be characterized as void only when no other alternative is possible. We reject the notion that with statutory proceedings any failure to comply with the statute is an action outside the subject-matter jurisdiction of the court. [citation omitted]. Only where the legislature may be said to have intended a particular requirement to serve as a limitation on the authority of the court to act should such a limitation be imposed. [citation omitted]…

“It could be argued that Clarke, which relied on the statutory provision that the obligation to pay future maintenance is terminated by the death of a party (Ill.Rev.Stat.1983, ch. 40, par. 510(b)), was wrongly decided, in light of the Act’s direction that it be liberally construed to make reasonable provision for spouses and minor children. (Ill.Rev.Stat.1983, ch. 40, par. 102(5).) Section 510(b) prohibits maintenance payments after an obligor’s death, not payments during an obligor’s life which have some effect after his death. If a court awards a large amount of property instead of maintenance, as the court is encouraged to do under the Act, that property will be available to the obligee even after the obligor’s death. Similarly, an obligee could certainly choose to purchase insurance on the obligor’s life, and could use the obligor’s maintenance payments to pay the premiums (assuming the obligee had an insurable interest). [citation omitted]. Section 510(b) deals with the time during which maintenance payments may be made, not with what maintenance payments may be used for.

“Clarke also relied on the fact that the prior divorce act specifically allowed the court to require security, and that specific authorization was not contained in the act. The Act is not simply a revision of Illinois law, however, but a uniform act, and it may be inappropriate to give much weight to the fact that the uniform act does not contain specific provisions found in the earlier Illinois statute. It is true that the Act specifically authorizes a court to set aside property in a trust for children (Ill.Rev.Stat.1983, ch. 40, par. 503(g)), but it is difficult to read that specific authorization as a legislative prohibition of orders requiring a maintenance obligor to maintain insurance on his life to prevent the premature termination of maintenance.”8

In re Marriage of Ellinger: Clarke Was Persuasive; Vernon’s Rejection of Clarke is Non-Binding

The Third District touched upon this issue in 2008. Despite the extensive discussion in Vernon and its limitation of Clarke, the Third District found Clarke to be the more persuasive, and legally-binding, case. In re Marriage of Ellinger, a Third District case from 2008, stands for the proposition that a spouse cannot be ordered to maintain a life insurance policy on his or her life to ensure his or her compliance with a maintenance obligation. In Ellinger, the trial court ordered the Respondent, Gary Ellinger, to pay the Petitioner, Sandra Ellinger, monthly maintenance, to terminate on the first occurring “statutory termination event.”9 The Respondent had maintained a life insurance policy since 1962.10 After the couple were married in 1985, the Respondent began using marital assets to pay the premiums on his life insurance policy.11 The trial court ordered the Respondent to “maintain [Sandra] as the sole beneficiary of the Thrivent life insurance policy, free of loans, liens and encumbrances, so long as he shall have an obligation to pay maintenance to [Sandra].”12 The appellate court relied on In re Marriage of Clarke as support for rejecting Appellant’s argument.13

“Furthermore, as the court observed in In re Marriage of Clarke, 125 Ill.App.3d 432, 80 Ill.Dec. 629, 465 N.E.2d 975 (1984), when the Act was enacted, it replaced earlier legislation that gave a trial court discretion to designate life insurance as security for maintenance obligations. The omission of such a provision in the Act showed the intent of the legislature to change the law in this regard.

“The trial court in this case based its decision, in part, on the ruling in Vernon, 253 Ill.App.3d 783, 192 Ill.Dec. 668, 625 N.E.2d 823. In Vernon, the court stated that it declined to address the application of the holding of Clarke because the parties had not raised Clarke in its briefs. Curiously, the Vernon court, nonetheless, discussed why it disagreed with the ruling in Clarke. Because the Vernon court’s rejection of Clarke was obiter dicta, we find Vernon to be inapplicable to the present case. Moreover, unlike the parties in Vernon, in this case, Gary argued the applicability of Clarke in his brief. Thus, the holding of Vernon is factually distinguishable from the present case.”14

The Third District noted that “Neither section 504, nor any other section of the Act, states that the court may order the spouse paying maintenance to designate the spouse receiving maintenance as the beneficiary of a life insurance policy as security for the maintenance payments.”15

The trial court had “said that the use of life insurance to secure maintenance payments was analogous to the use of life insurance to secure child support payments.”16 The Third District rejected this argument, noting that the obligation to pay future maintenance is expressly terminated at the death of either party, while child support obligations continue past the death of the parent obligated to pay support and may even be commuted to a lump sum payment.17 The court then added “Also, the Act contains language regarding the court’s discretion to designate assets as security for child support obligations, whereas the Act does not contain language giving the court discretion to designate assets as security for maintenance obligations.”18

The Ellinger court’s decision to follow Clarke is open to attack. In re Marriage of Vernon’s comments on Clarke were not merely obiter dicta. In Exelon Corp. v. Department of Revenue, the Illinois Supreme Court defined obiter dictum as “a remark or expression of opinion that a court uttered as an aside, and is generally not binding authority or precedent within the stare decisis rule.”19 The court went on to list indicators that language is obiter dicta:

“One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion-it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered.”20

In re Marriage of Clarke directly addressed whether maintenance payments could be supported by life insurance. “Significant on appeal is paragraph 2 which lists as a matter for determination, the following: ‘Whether husband shall be ordered to provide any security to wife for the payment of the unallocated maintenance in the event of his death and, if so, whether the security should be: [any one of various term and whole life insurance policies on petitioner's life] or designation as beneficiary on [petitioner's] Deferred Compensation Contracts.’”21 The reasoning and statutory interpretation in Clarke were expressly rejected by Vernon. Had the Clarke court employed Vernon’s reasoning, it would have arrived at a different outcome. Accordingly, In re Marriage of Vernon’s discussion of Clarke’s reasoning is not obiter dictum. Both cases were heard by the Fourth District and thus Vernon directly undermines Clarke’s precedent.

In re Marriage of Walker, a Fourth District case from 2008, reinforces the ruling in Vernon and serves as another rejection of Clarke’s precedential value.22 In Walker, Appellant/Respondent David Walker appealed the trial court’s order “requiring David to maintain a life-insurance policy to secure the maintenance payments” to his ex-wife, Appellee/Petitioner Barbara Walker.23 The Fourth District affirmed the trial court’s order and, in the process, discussed the precedential value of Clarke and Vernon.

“The Vernon court stated that “The Clarke court based its holding, in large part, on section 510(b) of the Dissolution Act, which stated that the obligation to pay future maintenance terminated upon the death of either party. [citation omitted]. This court also relied on the fact that a previous version of the divorce statute contained a section allowing the trial court to order security for maintenance, while the current statute did not have a similar provision.24

“However, nine years later in In re Marriage of Vernon, 253 Ill.App.3d 783, 192 Ill.Dec. 668, 625 N.E.2d 823 (1993), this court called into question the holding of Clarke and whether a court has the authority to order insurance as security for maintenance. In Vernon, this court reasoned that while the Dissolution Act does prohibit maintenance payments after a payor’s death, the Dissolution Act does not prohibit payments during a payor’s life that may have an effect after the payor’s death… From this, the Vernon court concluded that section 510(b) of the Dissolution Act does not address the possible use and potential effect of maintenance payments but only the time in which payments may be made.25

“Further, Vernon explained that the current statute, which no longer contained a provision allowing the trial court to order security for maintenance, was not simply a revision of Illinois law but adoption of a standardized, uniform act. [citation omitted]. Consequently, such an omission should not be construed as evincing a legislative intent to change the law and withdraw the court’s authority to order security for maintenance.”26

The Walker court then directly addressed the issue of whether a court can order that a maintenance recipient be named the beneficiary on the maintenance payor’s life insurance policy in order to ensure compliance with the payor’s life insurance obligation.

“While the Dissolution Act does not contain language specifically authorizing a trial court to order security for maintenance, the legislature did not specifically prohibit such an order. Therefore, this court will not presume that an order requiring a payor to keep a life-insurance policy as security for maintenance violates the Dissolution Act’s requirement that the obligation to pay maintenance terminate upon the death of either party. See Vernon, 253 Ill.App.3d at 788, 192 Ill.Dec. 668, 625 N.E.2d at 827.27

“In fact, the Dissolution Act grants the trial court wide discretion in awarding maintenance and dividing the marital property. The legislature directs a trial court to consider all relevant factors in its award of maintenance and authorizes a trial court to order maintenance for the duration and amount as it deems just. 750 ILCS 5/504 (West 2006). Similarly, the Dissolution Act grants a trial court the authority to divide the marital property in “just proportions.” 750 ILCS 5/503(d) (West 2006). Further, in section 102(5), the legislature directs courts to liberally construe the Dissolution Act in order to make reasonable provisions for spouses. 750 ILCS 5/102(5) (West 2006).28

“In light of this liberal construction, sections 503 and 504 are sufficiently broad to allow the trial court to award a form of security for a maintenance obligation, not necessarily limited to life insurance.”29

The court next discussed In re Marriage of Ellinger. The Walker court rejected Ellinger’s “faulty rationale” in presuming “that the legislature intended to change prior law by deleting language that gave a court discretion to designate life insurance as security for maintenance obligations.”30 The Walker court stated that “the legislature did not amend legislation; the legislature enacted a completely new law; therefore, that presumption does not apply.”31

“Where the legislature repeals an existing act and replaces it with an entirely new act, however, that presumption is rebutted. [ People v.] Nunn, 77 Ill.2d [243,] 248[, 32 Ill.Dec. 914, 396 N.E.2d 27, 29 (1979) ]. In Nunn, the change in the relevant law came about because the legislature repealed the original statute in toto and replaced it and others with the Uniform Act Regulating Traffic on Highways (now the Illinois Vehicle Code). Nunn, 77 Ill.2d at 247[, 32 Ill.Dec. 914, 396 N.E.2d at 29]. Thus, this court concluded, ‘the presumption is not invocable because the action of the legislature in 1935 was to adopt a new act * * * and not to amend the previous statute.’ (Emphasis added.) Nunn, 77 Ill.2d at 248[, 32 Ill.Dec. 914, 396 N.E.2d at 29].” In re K.C., 186 Ill.2d 542, 549, 239 Ill.Dec. 572, 714 N.E.2d 491, 495 (1999).”32

The Walker court then explicitly rejected Clarke’s holding by stating “Clarke should not be relied upon as authority for the proposition a trial court lacks the inherent authority to order insurance on maintenance payments.”33 In addressing Ellinger’s reliance on Clarke over Vernon, the Walker court stated “We hereby abandon Clarke and adopt the reasoning of Vernon.”34

While section 504 of the Illinois Marriage and Dissolution of Marriage Act states that maintenance payments terminate on the death of either party, the Walker court noted that “An insured makes no payments on a life-insurance policy after his death… Moreover, the insurance company, not the insured’s estate, pays the proceeds to the ex-wife upon the insured’s death, negating any concept of postmortem alimony.”35 The court further reasoned that, without a life insurance policy guaranteeing the maintenance recipient a sum of money, an award for maintenance could just as easily result in “the ex-spouse paying hundreds of thousands of dollars or it may result in him paying almost nothing if he died quickly.”36 The Walker court suggested that a trial court has a variety of tools at its disposal to ensure that court ordered life insurance is not too onerous a burden on the payor or too great a windfall for the recipient. The court noted that “A court may appropriately order the use of a term policy” or may recognize the asset value of the whole-life policy in the division of assets.”37

The First District has not addressed the issue of whether a maintenance award can be supported by a life insurance policy on the payor’s life. In the absence of an opinion on the subject, trial courts within the First District are left with the discretion to order a life insurance policy on the maintenance payor’s life. It should also be noted that the Third Circuit relied on weak, if not overturned, case law to support its position. More importantly, the Third Circuit’s opinion in Ellinger deviates from the Illinois Supreme Court’s methods of statutory interpretation while the Fourth District follows them closely.

In People v. Blair, an Illinois Supreme Court case from 2005, the Court stated that, “in construing a statute, our primary objective is to give effect to the intention of the legislature.”38 The Supreme Court then continued

“If this court can ascertain legislative intent from the plain language of the statute itself, that intent must prevail. [citation omitted]. To ascertain the legislature’s intent, we may properly consider not only the language of the statute, but also the purpose and the necessity for the law, evils sought to be remedied, and goals to be achieved. [citation omitted]. We will not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. [citation omitted].”39

The Fourth District’s interpretation of the IMDMA follows these enumerated principles of statutory interpretation. The Fourth District noted that the IMDMA neither expressly permits nor expressly prohibits ordering a life insurance policy be taken out on the maintenance payor’s life.40 In the absence of an express statutory prohibition, the Fourth District declined to read into the IMDMA an exception, limitation, or condition barring the court from ordering a life insurance policy.41 Further following the rules of statutory interpretation espoused by the Illinois Supreme Court, the Fourth District looked at the “purpose and the necessity for the law, evils sought to be remedied, and goals to be achieved”42 and stated that “in section 102(5), the legislature directs courts to liberally construe the Dissolution Act in order to make reasonable provisions for spouses.”43

The Third District’s narrow interpretation of the IMDMA relied on bad case law and ignored the Illinois Supreme Court’s rules of statutory interpretation. The Third District read in exceptions and limitations where there were none and reached a decision that ignored the express intent of the law. The First District should not follow the Third District’s lead and should instead follow the path of established law.

A spouse may be ordered to maintain a life insurance policy with his or her ex-spouse named as the beneficiary in order to ensure maintenance payments. The Ellinger court relied on subsequently-distinguished case law that has lost much of its precedential value. Additionally, statutory interpretation supports the proposition. However, until the issue is resolved by the Illinois Supreme Court or the Illinois General Assembly, courts in the First, Second, Fourth, and Fifth Districts “have discretion to secure maintenance obligations with life insurance.”44

1 Rob Shumaker, Using Life Insurance to Secure A Maintenance Obligation, 98 I.L.B.J. 466 (Sept. 2010)
2 In re Marriage of Clarke, 125 Ill.App.3d 432, 435 (Ill. App. 4th 1984).
3 Id. at 436.
4 Id.
5 Id.
6 Id.
7 In re Marriage of Vernon, 253 Ill.App.3d 783, 785 (Ill. App. 4th 1993).
8 In re Marriage of Vernon, 253 Ill.App.3d 783, 788-789 (Ill. App. 4th 1993).
9 In re Marriage of Ellinger, 378 Ill.App.3d 497, 498 (Ill. App. 3rd 2008).
10 Id.
11 Id.
12 Id. at 499.
13 Id. (citing In re Marriage of Vernon, 253 Ill.App.3d 783 (Ill. App. 4th 1993).
14 Id. at 501
15 Id. at 500.
16 Id.
17 Id. at 500 (citing 750 ILCS 5/504 and 750 ILCS 5/510(c)-(d)).
18 Id. at 500.
19 In Exelon Corp. v. Department of Revenue, 234 Ill.2d 266, 277 (Ill. 2009).
20 Id. at 277 (citing United States v. Crawley, 837 F.2d 291, 292 (7th Cir.1988)).
21 In re Marriage of Clarke, 125 Ill.App.3d 432, 434-435 (Ill. App. 4th 1984).
22 In re Marriage of Walker, 386 Ill.App.3d 1034 (Ill. App. 4th 2008). �
23 In re Marriage of Walker, 386 Ill.App.3d 1034, 1035 (Ill. App. 4th 2008).
24 In re Marriage of Walker, 386 Ill.App.3d 1034, 1045 (Ill. App. 4th 2008).
25 Id.
26 Id. at 1045-1046 (citing Vernon, supra note 15, at 789).
27 Id. at 1046.
28 Id. at 1046.
29 Id. at 1047.
30 Id.
31 Id.
32 Id. at 1048.
33 Id. at 1049.
34 Id.
35 Id. at 1050.
36 Id. at 1050.
37 Id. at 1050.
38 People v. Blair, 215 Ill.2d 427, 442 (Ill. 2005) (citing People v. Greer, 212 Ill.2d 192, 208 (Ill. 2004).
39 Id. at 442-443 (citing People v. Boclair, 202 Ill.2d 89 (Ill. 2002), People v. Botruff, 212 Ill.2d 166 (Ill. 2004), People v. Coleman, 183 Ill.2d 366 (Ill. 1998)).
40 Walker, supra note 22, at 1046.
41 Id.
42 People v. Blair, supra note 38, at 442-443.
43 Walker, supra note 22, at 1046.
44 Rob Shumaker, Using Life Insurance to Secure A Maintenance Obligation, 98 I.L.B.J. 466 (Sept. 2010)