Co-Habitation and Maintenance

Under Illinois statute, Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, maintenance (“alimony” or “spousal support”) terminates when the person receiving maintenance (“the payee”) remarries or cohabitates with someone else on a continuing conjugal basis.

The policy behind the cohabitation rule is that the ex-spouse paying maintenance should not be obligated to support his/her ex-spouse when the ex-spouse becomes involved in a relationship that closely resembles a marriage.

However, an ongoing issue is: how does the Court identify when cohabitation is no longer just a dating or “intimate relationship” or something more similar to a husband and wife relationship or “de facto marriage”?

Historically, the courts in Illinois have focused on the existence of six factors when assessing the existence of a “de facto marriage”: the length of the relationship, the amount of time spent together, the nature of the activities the couple enjoys together, the interrelation of their personal affairs, their vacationing together, and their spending holidays together. See In re Marriage of Herrin, 262 Ill. App. 3d 573 (4th Dist. 1994).

In In re Marriage of Miller, 2015 IL App. (2d) 140530, a more recent appellate court case, from the second district, provides another approach that is a departure from the six-factor test. It provides a new standard that the court may apply in determining if a “de facto marriage” v. an “intimate dating relationship” exists.  In this case, the parties did not commingle finances but they traveled, golfed, and dined out together. They stayed together on the weekends and shared a membership at their gold club.  The lower level court determined that there was a “de facto marriage” and maintenance should not be payable.

The appellate court, however, reversed this finding held that trial courts must look at the “totality of the circumstances” to determine whether the relationship also functions practically and economically in a marriage-like way. Critically, the parties did not commingle finances with the exception of the golf membership and there was no evidence that they intended to make their relationship a permanent one.

If your matter involves an issue of cohabitation and maintenance, Miller may be an important precedent to aid in distinguishing an intimate dating relationship and a de facto marriage.

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