Termination of Maintenance Due to Cohabitation Under Illinois Law

In Illinois, maintenance can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.”  What does that mean? The answer is not as straightforward as it might seem.

To illustrate the analysis, an example is helpful. Let’s assume Danny married Sandy in 2008. During their marriage, Danny has earned a decent income. Sandy is unemployed. Danny believes that Sandy has been unfaithful, and he wants a divorce. Sandy also wants a divorce, and asks Danny if he would help her financially so she could get her own apartment while the divorce is pending. Danny refuses to give her a dime. At first glance, Sandy would seem to be a strong candidate to receive maintenance.

Subsequently, Sandy moves out of the marital residence and into the home of her long-time friend, Johnny. Danny believes that Sandy may be having an affair with Johnny because he saw a picture of Johnny kissing her on the cheek on Facebook. He has always suspected that she had feelings for him. Sandy denies that she is in a romantic relationship with Johnny. Rather, she claims they are simply friends and roommates.

After about a month of living with Johnny, it is clear that Sandy spends a few nights each week with Johnny. She sleeps in her own, separate room. She does not pay anything toward Johnny’s household bills, and she does not have any joint accounts with him. Sandy has, however, gone on a weekend trip to Galena with Johnny, and has spent Thanksgiving with him. Under this set of facts, would Sandy be entitled to maintenance from Danny? Or would her right to receive maintenance be terminated due to her cohabitation with Johnny.

Under Illinois law, before awarding a party maintenance in divorce proceedings, the court must consider the factors listed in Section 504 Illinois Marriage and Dissolution Act. Additionally, Section 510(c) provides that “Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.”

If Danny believes that Sandy is cohabitating with Johnny on a resident, continuing conjugal basis, Danny must first prove that a “de facto husband and wife relationship” exists between Susan and Johnny.

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.

So under our hypothetical, would Danny be ordered to pay Sandy maintenance? Under Illinois law, each case involving a termination of maintenance based on a conjugal cohabitation rests on its own unique set of facts, so it would be up to judge to decide.

For more information on maintenance awards, contact us.

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