Cohabitation and the Termination of Maintenance Payments

 Posted on November 03, 2013 in Alimony / Maintenance

Section 510 of the Illinois Marriage and Dissolution of Marriage Act provides for maintenance, formerly known as spousal support, and for the termination of maintenance payments in a variety of circumstances. For example, maintenance payments may stop or change a party’s employment status, income, or future earning capacity changes. Maintenance payments will also stop when or if the party receiving maintenance remarries or cohabitates with another. This last criteria, cohabitation, has the possibility be tricky and upsetting for one or both parties.

Cohabitation, when two unmarried persons live together, is becoming increasingly popular in the United States. Cohabitation often makes sense for a couple because of finances, companionship, or some other reason. The Chicago Tribune reports that the number of unmarried couples cohabitating has increased 550 percent since 1995, to a total of about 1.5 million couples today. Perhaps more importantly, cohabitation today is not just limited to younger couples who have never been married; cohabitation is also popular among couples aged 50 and older. And typically, cohabitating people of this age group have been divorced. After a divorce, both parties are likely trying to look to the future, move on, and perhaps pursue a new relationship. Cohabitation may not even be a factor that occurs to them. However, cohabitation is important because of its tremendous impact on maintenance payments and because there is not necessarily a clear line between cohabitation and dating. The Illinois Marriage and Dissolution of Marriage Act does not offer a definition of cohabitation, it merely specifies that cohabitation must be “on a resident, continuing, conjugal basis.” Illinois courts, including those in Kane County, have held that the burden of proving cohabitation is on the party seeking the termination of maintenance to prove that the party receiving maintenance is in a de facto husband and wife relationship with a third party. In interpreting this, courts have looked to the length of the relationship with the third party, the amount of time the couple spends together, the nature of the activities engaged in, the interrelation of their personal affairs, whether they vacation together, and whether they spend holidays together. For example, in In re Marriage of Susan, a 2006 case in which the Appellate Court of Illinois for the Second District considered cohabitation, an divorced woman who spent the night several times a week at her boyfriend’s house, spent Thanksgiving and Christmas with him, went on camping trips with him, and sent out joint Christmas cards with him was found to be co-habitating and her ex-husband’s petition to terminate maintenance was successful. The facts in each individual’s situation will likely be different, and there is no clear line between dating and cohabitation. For help understanding if Illinois law on cohabitation may affect you, contact a Kane County divorce lawyer.