De Facto Marriage and Terminating Spousal Maintenance

John Churchill believed that his ex-wife, Amy Churchill, was engaged in a de facto marriage, and because of that, sought to terminate his maintenance obligation. He tried two times to terminate his maintenance payments and both times the trial court denied his request. The appellate court found differently however and reversed the trial court’s ruling.  

What is a De Facto Marriage?

A de facto marriage looks exactly like a marriage, although the couple was never legally married.  In some states, a long-term relationship where the parties are living together can eventually lead to a legally recognized marriage.  This occurs even though there was no ceremony.  In Illinois however, you can remain in a living arrangement forever and it will not lead to marriage.  In Illinois, you have requirements to meet, like getting a license, before you can be legally married.  A de facto marriage looks just like a marriage to anyone else, in that they are living together as spouses.  Some typical requirements are that a de facto spouse lives under the same roof as the other person and that possessions have been pooled for joint use as a common household. In Illinois, we refer to this type of living arrangement as “cohabitation.”

Why is Cohabitation Important in Maintenance Cases?

Unless you have agreed otherwise in your Marital Settlement Agreement, cohabitation is grounds to terminate maintenance.  In Illinois, a party is entitled to terminate maintenance when a former spouse “cohabitates on a continuing conjugal basis” with a new partner.  How that phrase is interpreted by the court depends on the facts in the case.  The case of Churchill was a case where John believed his ex-wife was cohabitating and he attempted twice to terminate his maintenance obligation to her.  Both times he failed at the trial level, but the appellate court believed John had met his burden on his second attempt and the Appellate Court overruled the trial court.

Case Background

As stated above, this is the second petition to terminate maintenance filed by John. Both times, John alleged that his wife Amy was cohabitating with her boyfriend Jared.  Amy filed for divorce in late 2016 and in February 2017, Amy was given spousal maintenance of $5,000 a month and child support of $6,040.00 a month.  John believed that Amy moved in with her boyfriend Jared, and because of that cohabitation, John sought to terminate his maintenance obligation.

Evidence Presented At Trial

At the termination trial, Amy testified that she met Jared in late 2016.  Various events were testified to, including Jared visiting Amy at the hospital in January 2017, and that they went on their first date on Valentine’s Day 2017.  Amy testified that they engaged in sexual intercourse since February 2017. Amy estimated that Jared spent the night at her house seven times between February and April 2017, with the longest period being a weekend. Jared kept clothes at her home, which was the marital home, and at her rental place.  Jared helped Amy move furnishings as well.  There was testimony about how much time they spent together, and the different activities they engaged in, like movies and bowling.  

Jared also helped Amy with chores, like taking the trash out and mowing the grass.  Jared helped with the children too, tutoring one of the sons with his Spanish homework and attending their extracurricular activities. Evidence was heard that Amy even received packages to the house by the name of Amy Fogle. Amy vacationed in Las Vegas with Jared to celebrate his birthday, but she testified that she paid her share of the trip. They also traveled for family gatherings. 

The Boyfriend’s Testimony

Jared testified that his permanent home address was in Texas, although his business moved around.  His time with Amy was only temporary since he intended to remain in Texas once his business in Morton was completed.  Although he spent a few nights at Amy’s house, he stayed primarily at his converted living space by his office.  Jared testified that he did not have a key to the marital residence nor to her new apartment.  Jared did have items delivered to her home but did not keep any toiletries there.  

Private Investigator Sheds Light on the Number of Overnights Jared & Amy Spent Together

Other witnesses testified that Amy bought Jared a ring and that they were authorized users on each other’s credit accounts. The private investigator testified that he surveilled Amy’s house and Jared’s business to track the nights spent together.

Amy was Awarded $10,000 in Permanent Monthly Maintenance and John Appealed

After hearing the evidence, the trial court entered an order denying John’s petition to terminate temporary maintenance. The court awarded Amy permanent maintenance in the amount of $10,000 per month.  John argued on appeal that the trial court erred when it denied his petition, and the appellate court first agreed with the trial court.  John filed again to terminate maintenance.

The Court Denies John’s Petition Again in the Second Trial

This time, Amy testified that she did not plan to end her relationship with Jared. She still had no plans to marry, but they did spend a lot of time together.  The testimony was extensive and included all the trips they’d taken together, vacations spent, and family outings. The private investigator testified that the investigation began on June 24, 2018, and ended on August 5, 2020. During that time, she made 115 visits to Amy’s home address in Morton, Illinois. Throughout her two-year investigation, the investigator saw a pattern with Jared parking his truck at Amy’s home frequently and that Jared stayed at Amy’s home for approximately 75% of the time during the time she investigated.  After hearing the evidence, the trial court denied John’s petition to terminate maintenance again.

Illinois Law on Termination of Maintenance for Cohabitation

In Illinois, maintenance terminates if you are in a resident, continuing conjugal basis with another person.

The Illinois statute that deals with maintenance and termination is Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act.  That statute provides that “the obligation to pay future maintenance is terminated if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510(c) (West 2020).  Under the law, it was John’s burden to establish that Amy was cohabitating with Jared.  In determining whether John met his burden, the court looks to the totality of the circumstances and considers the following non-exhaustive list of factors:

1. the length of the relationship,
2. the amount of time spent together,
3. the nature of activities engaged in,
4. the interrelation of personal affairs (including finances),
5. whether they vacation together, and
6. whether they spend holidays together.

Evidence of De Facto Husband-and-Wife Relationship

The Appellate court reviewed the factors and found that both “Amy and Jared testified that they shared a monogamous sexual relationship. 

Factors leading to that finding included:

• They shared the same bedroom when they spent the night together.
• They attended concerts and sporting events and traveled around the country together.
• Amy stayed with Jared when he traveled for work.
• The two celebrated holidays and birthdays together.
• Jared purchased gifts for Amy’s children.
• Jared attended family events with Amy, including traveling to California for her son’s military graduation.
• Jared visited Amy’s son in the hospital.
• Amy cared for Jared’s cat when he was out of town and took the cat to the veterinarian.

These activities give the appearance of a de facto husband-and-wife relationship.”

The reviewing court also found that although neither shared a joint bank account, Jared used Amy’s debit card at an ATM to withdraw money for her on at least one occasion. The two also intermingled other aspects of their life, including (1) opening a shared account at a jewelry store, (2) listing Jared’s cat under Amy’s account at the veterinarian, and (3) having Jared’s vehicle invoices appear on Amy’s account. Amy and Jared shared vehicles. Jared knew the garage code to access Amy’s home. Jared also visited Grant’s military recruiter and attended Grant’s military send-off and military graduation. This evidence shows that Amy had interrelated much of her personal affairs with Jared’s. 

Exchange of Rings a Significant Fact to Finding a De Facto Marriage

While the trial court did not put much weight on the fact that Jared and Amy had exchanged rings, the Appellate court found that important.  The exchange of rings is a significant fact to support a finding of a de facto marriage. Although Jared and Amy denied that the rings symbolized an engagement or marriage, the reviewing court could see no other way to interpret the significance of the rings. Further, Jared had mail sent to Amy’s home addressed to “Amy Fogle.” Amy claimed he used the name of Amy Fogle so she would know that it was from him. According to Amy, this meant she should wait to open the package until they were together. The reviewing court found that her explanation made no sense. Jared’s and Amy’s use of Jared’s last name supports a finding of a husband-and-wife relationship.

Appellate Court Finds There Is Cohabitation

After reviewing the six factors and considering the totality of the circumstances, the Appellate Court concluded that most of the evidence established that Amy and Jared cohabited on a resident, continuing basis. 750 ILCS 5/510(c) (West 2020). Therefore, John satisfied his burden of proof, and the trial court’s denial of the petition to terminate maintenance was contrary to the manifest weight of the evidence.

If you believe that your ex-spouse is in a de facto marriage, speak to a Family Law Attorney to see if you have enough evidence to terminate your maintenance obligation.