In Illinois, we sometimes award a party support from their former spouse, called maintenance. Many other states typically refer to this as alimony or spousal support. In Illinois, the maintenance statute indicates that spousal support will terminate if the recipient of the maintenance cohabits on a continuing, conjugal basis with another person while receiving maintenance. The statute in Illinois also indicates that the support terminates on the death of the payor, or upon the death of the recipient. However, parties can agree to modify the statute and come to their own agreement regarding what events will terminate their spousal support or maintenance, even if it varies from what is written in the statute.
Termination Factor: Cohabitation
For example, parties will occasionally agree to continue to pay spousal support to someone even if they live with or “cohabit” on a continuing, conjugal basis with another person. And, in the event that this is agreed upon by the parties, the agreement should outright say that the support won’t terminate upon cohabitation occurring. Parties have many reasons for why they might agree to this. For one thing, cohabitation can be extraordinarily difficult to prove in court.
What is a “De Facto” Marriage?
The case law in Illinois seems to implore parties to prove that their spouse is actually involved in a “de facto” marriage before support will be terminated, as seen in some of the appellate court rulings. This means carrying out to the community that they are in a relationship similar to a marriage, calling each other husband and wife to third parties, comingling finances, vacationing together, spending holidays together, and more. Usually, the only window of opportunity the paying spouse has into the recipient spouse’s living situation is what they might hear from their minor children. Most parents don’t want to question their children about the comings and goings of the other parent’s significant other and what goes on in the other home, and some allocation judgments prohibit parents from questioning their children about the other parent’s activities altogether.
Proving Cohabitation – Easier Said than Done
So, while a party might be certain that their ex-spouse is cohabiting, it can be extraordinarily difficult to prove it in court. Often this will cost the parties a lot of money to litigate, with the paying spouse sometimes hiring a private investigator to conduct surveillance and requiring extensive discovery to prove a de facto marriage. When it comes down to it, a party who has to pay support for several years and then it terminates may agree to remove the cohabitation termination language because the amount it would take everyone to litigate the issue should it arise would be cost-prohibitive versus actually paying the maintenance itself.
Termination Factor: Death of a Paying Spouse
Another situation where maintenance terminates is upon the death of the paying spouse. This leaves the recipient spouse in a bad spot because they rely on the financial support, which is suddenly gone. Marital Settlement Agreements are sometimes drafted where a life insurance policy can secure the maintenance or spousal support payments so that if the paying spouse unexpectedly passes away during the maintenance term, the recipient spouse is not destitute. Oftentimes in this situation, the recipient spouse will pay the premiums on the life insurance policy, so this security blanket is at their own cost.
Additionally, for the life insurance policy, the marital settlement agreement should also contemplate what happens if the life insurance policy is unilaterally reduced by the payor spouse. This is unusual for a term policy, but it is possible to reduce the death benefit for a whole-life policy, where someone can take out loans against it. The marital settlement agreement can contemplate all of this and can even provide that the unpaid maintenance amount that isn’t available via the life insurance proceeds could become a lien against the estate of the paying spouse to try and secure the money even in the event the life insurance policy is somehow reduced.
While the Illinois statutes provide guidelines for maintenance termination and the factors, the parties can always reach their own agreement. Should their agreement deviates from Illinois guidelines, the Court will enter it so long as it is agreed upon and the Court finds that it is not unconscionable.