divorce

When a divorce occurs, one of the more complicated issues to sort out between the divorcing spouses is the financial situation.  The spouses have spent their entire marriage living off of their combined incomes and if one spouse makes significantly less money than the other, they are generally entitled to spousal support or maintenance, usually in the form of child support or alimony.  According to state laws throughout the U.S., this type of maintenance is terminated once an ex-spouse remarries.  However, the situation is less straightforward if an ex-spouse receiving maintenance cohabits with someone new.  In Illinois law, maintenance is terminated “if the party receiving maintenance cohabits with another person on a resident, continuing, conjugal basis.”

The factors that determine true cohabitation are open to some interpretation when it comes to this law.  In fact, courts generally put more focus on the financial aspects of the situation when deciding whether to terminate maintenance than on a strict interpretation of the relationship aspects of cohabitation.

Determining Termination of Maintenance

The main purpose of terminating spousal maintenance is to prevent the inequality that occurs when the spouse receiving the maintenance is involved in a relationship with the benefits of a marriage through resident, continuing conjugal cohabitation, without being legally married.  State legislatures are also careful not to impose a moral standard for people in relationships that are non-traditional.  When the courts are deciding whether to terminate maintenance for cohabitation, they take the following factors into account to ensure a fact-based inquiry:

  • The length of the relationship
  • The amount of time the couple spends together
  • The types of activities they do together
  • The interrelationship of their personal matters
  • Whether the couple spends vacations and holidays together

In recent years, the courts have become less concerned about the details of the relationship itself, and more concerned with the financial situation between the spouse receiving the maintenance and their significant other.  There have been plenty of cases in which an ex-spouse has spent nights, holidays, and vacations together with the new significant other, and even lived with the new person, but the ex-spouse has covered their own expenses.  In these cases, the court generally determines that the ex-spouse is not receiving financial benefits from the new relationship and therefore, the maintenance will not be terminated.  The financial need of the recipient spouse is weighed more heavily by the courts when determining if maintenance should be terminated than the other factors.

Termination of Maintenance in Illinois

While the law in Illinois indicates that the relationship factors should play a role in determining if maintenance should be terminated, Illinois courts have shown in practice that these factors alone are not a basis for termination.  There must be economic factors involved including equitable contributions to loans, household expenses, large purchases such as cars, and bill payments on behalf of each other for maintenance to be terminated.  The reason for this emphasis on the financial situation of the ex-spouse and their new significant other is to differentiate between a dating relationship and true cohabitation which includes financial intertwinement and a long-term commitment to the relationship.

Termination of Maintenance Cases Across the Country

The process of determining if spousal maintenance should be terminated that is described above is specific to the law and court practices in Illinois.  However, similar cases from across the country show that the rationale behind these practices is pretty widespread and consistent throughout the U.S.  The following are cases that have set the precedent for the current emphasis on the economic aspects of cohabitation:

  • Double v Double (1967): In this case heard by the 2nd District California Appellate Court in 1967, the court ruled that permanent alimony can only be changed if the former husband can no longer make the payments due to changes in his financial situation. The fact that the ex-spouse receiving the alimony was living with a man that she was not married to was not enough to terminate the ex-husband’s maintenance.
  • Gavet v Gavet (1983): In this 1983 case heard by a court in New Jersey, the court found “while cohabitation constitutes changed circumstance that may justify modification of alimony, such modification is proper only if cohabitant supports or subsidizes alimony recipient under circumstances sufficient to entitle supporting spouse to relief.” What this means is that cohabitation is not enough, the new significant other must be providing some type of economic support to the ex-spouse in order to terminate their maintenance payments.  This case set a precedent on the emphasis of the economic aspects of cohabitation.
  • In re Marriage of Miller (2015): In this case from May 2015, the Illinois Appellate Court ruled that economic intertwinement is the key factor in determining cohabitation in which maintenance may be terminated.

Reduction of Maintenance

It is clear that throughout the country, courts are looking for evidence of economic intertwinement between an ex-spouse and a new significant other as grounds to terminate maintenance payments.  However, there are cases in which spousal maintenance may be reduced based on the financial benefits the ex-spouse gets from the new significant other.  In the 1983 case Bisiq v Bisiq, the New Hampshire Court found that a recipient ex-wife’s new significant other was contributing to her expenses including her rent, utilities, and travel, leading to a reduction in maintenance.  The court determined that the new significant other’s contributions were enough to warrant a reduction, but not enough to terminate the maintenance payments.

Enlist the Help of Divorce Attorneys

When it comes to determining whether or not maintenance should be terminated due to cohabitation, the court must find that there is an intertwinement of finances and an intention of commitment to the relationship similar to that of a marriage.  If you are receiving maintenance payments from an ex-spouse and you are in a new relationship, you must keep your finances separate to keep receiving maintenance.  If you are making maintenance payments and would like them terminated on the grounds of cohabitation, your petition to terminate these payments must focus on the financial aspects of your ex-spouse’s relationship.

Regardless of which side of this issue you find yourself, it helps to seek legal representation from experienced divorce attorneys such as those at Allen Gabe Law, P.C.  Our seasoned family law attorneys can help you build a case if there are grounds to terminate your maintenance payments, and we can also help defend those who have the right to continue receiving maintenance payments if their ex-spouse is trying to terminate them.

Contact Allen Gabe Law, P.C. by calling (847) 241-5000 to talk to our experienced attorneys.

 

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As a specialist in divorce law, family law, litigation, real estate and business and corporate law, Allen has provided responsible legal representation for clients in a wide variety of matters for over 30 years. Allen is also a sought-after public speaker within the attorney community.

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