cohabitation can terminate maintenance or alimony

Termination of Spousal Maintenance or Alimony Due to Cohabitation

Alimony – or maintenance as it is now referred to in Illinois –  is spousal support payable from one spouse to the other in a divorce case.  Under Illinois law, the right to receive this spousal maintenance terminates if you “cohabits with another person on a resident continuing conjugal basis.”  There is no definition of “cohabitation” in the statute, so this section of the law has been litigated leading to the definition of cohabitation being developed over time by the outcome of these cases.  These cases are important because once your spousal maintenance terminates due to cohabitation, it ends forever – even if the relationship ends you can never get your spousal maintenance back.  

Defining “Cohabitation”

The word “cohabits” is defined in the dictionary as a verb: “living together without being married”

The word “resident” is defined in the dictionary as a noun: “a person who lives somewhere permanently or on a long-term basis” or as an adjective meaning living somewhere on a long-term basis.

The word “continuing” is defined as without a break in continuity and ongoing.

The word “conjugal” is an adjective defined as relating to marriage or the relationship of a married couple.

Putting these definitions together you are left with this: 

Your maintenance will terminate if you live with someone without a break in continuity and ongoing as if you were a married couple.

The rationale behind this law is that the person paying maintenance to their former spouse should not have to also support another person who would be living with and sharing expenses with the former spouse and it is presumed that the legislature did not want to discourage marriage between two people who could simply live together if one of the parties were receiving maintenance from a former spouse.  

The person who wants to terminate their maintenance payments due to their suspicion that their former spouse is now cohabitating with another person on a “resident, continuing and conjugal basis” has the burden of proving such a relationship exists.  It is often necessary to retain the services of a private investigator to obtain evidence that the former spouse and the significant other’s lives are intertwined in such a way that mirrors a marriage. Meaning they live together, have shared accounts, joint bills, travel, together, celebrate holidays together is important to show these factors mirror a marriage as it is not likely that you can meet your burden to terminate maintenance simply by showing that your former spouse and a significant other spend nights together.  You are certainly entitled to move on with your life and have new relationships and date and travel with another, however, living together is often the trigger to terminate maintenance.  

Evidence of Cohabitation

It is important to gather all the evidence you can and talk with an attorney about the information that you have to determine if it is enough to move forward with a motion to terminate the maintenance.  It is important to look at how long your former spouse has been in this new relationship.  If the relationship is one month or one year, that difference will be significant.  

Another factor is how much time they are spending together and how you know how much time they are spending together. 

  • Do you live across the street and see what is going on?
  • Have you hired someone to watch them or have you seen them out and about around town?   
  • Have they comingled finances by opening up a joint bank account or sharing household bills that are in both of their names? 
  • Does the significant other have mail coming to your former spouse’s home?
  • Do they spend the holidays together and travel together?
  • Do they call each other “husband” or “wife”?
  • Have they changed the relationship status on their social media accounts as “married”?
  • Do they tell people they are married? 

Each case will be determined based on the specific facts of that case so there is not one checklist that will work for every case.  However, it is often cited that, “Courts must look at the totality of the circumstances to determine whether the new relationship functions practically and economically in a marriage-like way.” Marriage of Miller, 2015 IL App (2d) 

The factors in the recent case law seem to turn on not just staying overnight at the house but actually living at the house.  Often times the significant other will maintain their own apartment where they get mail and it is sparsely furnished but they do not spend any time there and courts see through this and have found that even though a separate apartment exists the parties are living together.  The courts want to know where you keep your clothes, wash your clothes, cook your meals, care for your children, and other everyday necessary tasks.  Doing all of these things at your significant other’s home is beyond normal dating behaviors.  

Tips to Avoid Termination of Your Spousal Maintenance

If you want to keep your spousal maintenance in place and not risk your former spouse filing a motion to terminate your maintenance, here are tips you need to follow:

  • Do not move in together.
  • Keep your finances totally separate.  
  • Do not share household expenses. 
  • Do not name a significant other as the beneficiary on any of your assets.
  • Do not purchase a car, real property, or any other assets with your significant other. 
  • While you can spend holidays together, but do not send out holiday cards from you as a couple.
  • When vacationing together you each should pay your own way.
  • Do not post on social media or make any representation that you are married or engaged.

 Addressing Maintenance Termination in Your Marital Settlement Agreement

You can also deal with spousal support or maintenance in your Marital Settlement Agreement and agree to something other than termination upon cohabitation.  I have worked with clients who do not want to discourage their ex-spouse from getting married – they welcome it.  So, they have made provisions for the payment of much less maintenance but agreed to continued paying whether they were married or not.  This takes away the incentive to just remain single to keep the maintenance and allowed the payor to pay less even though his former spouse remarried.  The Marital Settlement Agreement is a contract between two parties so as long as the terms are reasonable and not unconscionable the court should approve and you can be creative with a solution to what may happen.   

Speak to a Chicago Divorce Attorney About Cohabitation and Its Impact on Maintenance

If you suspect that your ex-spouse to whom you are presently paying maintenance is in a serious live-in relationship, you should talk to an experienced Chicago divorce attorney about what evidence you will need to terminate maintenance due to cohabitation. Contact Anderson & Boback today for a free consultation for questions about cohabitation and its impact on spousal maintenance.

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