My spouse is cohabitating with a significant other, how can I prove this to terminate my maintenance obligation?

If a maintenance award was made under 750 ILCS 5/504 the payor may petition the Court under 750 ILCS 5/510 (Modification and Termination of Provisions for Maintenance, Support, Educational Expenses, and Property Disposition) to terminate the award if the payor determines that the payee (person receiving the maintenance) is cohabitating with a significant other.  750 ILCS 5/510 (C) states, “A payor’s obligation to pay maintenance or unallocated maintenance terminates by operation of law on the date the recipient remarries or the date the court finds the cohabitation began.  The payor is entitled to reimbursement for all maintenance paid from that date forward.”

Illinois case law lists various factors that a court will consider when determining whether preclude or terminate a maintenance award. A court will consider the following factors:

1) the length of the relationship;

2) the amount of time the couple spends together;

3) the nature of activities engaged in;

4) the interrelation of their personal affairs;

5) whether they vacation together; and

6) whether they spend holidays together.

Illinois courts have found that the following types of activities tend to prove cohabitation on a continuing and conjugal basis:

• If the couple has been residing together more than a few months before the court hearing;
• If the couple establishes joint checking, savings, investment, or other accounts and comingles funds;
• If the couple shares meals, household chores, bills, or credit accounts;
• If the couple has listed each other as beneficiaries on life insurance, retirement, or other assets;
• If the couple has named the other in his or her will; and
• If the couple exchanges holiday and birthday gifts, takes vacations together, and spends holidays together.

Interestingly, the existence of a sexual relationship is not required to prove the existence of a conjugal relationship sufficient to terminate maintenance. Impotent males have been found to be in a conjugal relationship. So have same-sex roommates who profess to be mere “friends.” This rule alleviates the difficulty inherent in trying to prove whether a sexual relationship exists.

Another factor the court will consider is whether the cohabitation has materially affected the recipient’s need for support. For instance, if the recipient is living with someone who provides no financial assistance whatsoever to the recipient, it may weigh in the recipient’s favor. However, this factor alone is not sufficient to defeat a petition to terminate maintenance if all other factors demonstrate the relationship is continuing and conjugal. Illinois courts have held that even if the recipient is living in a conjugal relationship with a third party who makes little or no money, it is not the payor’s responsibility to make up for the new de facto spouse’s lesser income.

As many of these things can be hard to prove without the payor providing information, it may be necessary to hire a private investigator to collect facts, take depositions of the payor and other people who have knowledge of the situation, examine financials and submit subpoenas to places that contain necessary information.


Leave a Reply