Illinois is one of only a few states where spousal support (commonly referred to as “maintenance”) statutorily terminates short of remarriage. Specifically, the Illinois Marriage and Dissolution of Marriage Act provides that one of the several factors which will justify a termination of maintenance is the cohabitation of the maintenance recipient with another person on a resident, continuing conjugal basis. 750 ILCS 5/510(c)(3).
In many cases, both payors and recipients of spousal support find this provision upsetting. Many spousal support recipients, the majority of whom are women, are bothered by the fact that their spouse can leave the marriage and pursue a new relationship without any repercussions, while they are restricted in moving on with their lives regardless of the duration of the marriage, the number of children, and their prior contributions to the marriage. The payor spouses, on the other hand, many of whom are still men, also complain about this statutory provision. Understandably, the support payors become resentful if they feel that they are making support payments to someone who is cohabiting, as they feel that they should not have to “support” this new relationship. Over the years, I have represented clients on both sides of the equation. Regardless of which side, I find myself counseling clients that while I recognize their feelings of frustration, and the statute may seem unfair, they really have no choice…it’s the law.
In seeking a termination of maintenance based on cohabitation, the burden of proof lies with the party seeking to terminate. Therefore, in determining whether a party is cohabiting on a resident, continuing conjugal basis, the courts in Illinois generally consider the following factors: (1) length of the relationship; (2) amount of time the couple spends together; (3) nature of the activities the couple engaged in; (4) the interrelationship of the couple’s personal affairs; (5) whether the couple vacationed together; and (6) whether the couple spent holidays together. Given that each case is fact specific, it is not surprising that the court’s in Illinois have been inconsistent in how they rule on these issues. The driving force behind the legislative intent, however, is not an attempt to control one’s moral behavior, but rather a desire to free the payor spouse from paying maintenance in a situation where the new relationship affects the recipient’s need for support.
Since the case law in Illinois is not definitive, or even consistent between districts, it would be helpful to parties, as well as divorce practitioners, for the legislature to clarify this often gray area of cohabitation and maintenance termination.
Determining how much weight should be given to the various factors would also be extremely helpful since currently different districts in Illinois place varying weight on the different factors. Therefore, in one county, a relationship may be deemed to be only a dating relationship and maintenance is not terminated, while in another county, that same relationship is considered serious enough to trigger a termination of maintenance. Perhaps one way to help reach consistency would for be for the legislature to deem the fourth factor, the interrelationship of a couple’s financial affairs, the most significant if not dispositive. As a result, a couple who did not intermingle their finances and assets could date without the fear of a maintenance termination.
Where does this leave those bothered support recipients, many of whom are my clients, as well as those resentful support payors, many of whom are also my clients? Perhaps they can take comfort in knowing they are not alone. In advising a client and settling a case where maintenance is an issue, thought should always be given to a client’s future goals and likely probabilities. If it is likely that a party will cohabit and remarry, maintenance may not be appropriate and alternate settlement structures should be considered. Alternately, two agreeable parties could decide to make maintenance non-modifiable, or agree to override the cohabitation provision. In the meantime, perhaps the Illinois legislature will work to bring clarity to this often murky area of the practice.