In Illinois, spousal maintenance obligations ends either: (1) automatically based on a date specified in the court order; (2) automatically upon remarriage; (3) when the recipient spouse begins cohabitating with a significant other, which requires the payor-spouse to ask the court; (4) automatically upon death unless a life insurance policy is to be paid to the recipient ex-spouse when the paying ex-spouse dies; (5) upon petition where there is a substantial change in circumstances; or (6) voluntary agreement, but the judge may not agree. So, spousal maintenance ends when the recipient-spouse cohabitates with a significant other. However, spousal maintenance does not end automatically with cohabitation, as is does with remarriage. The ex-spouse paying spousal maintenance must go to court and prove that the recipient ex-spouse is in fact living with another person, in a romantic relationship resembling a marriage.
Under the statute, 750 ILCS 5/510(c), the obligation to pay maintenance terminates if the recipient ex-spouse is cohabitating with another person “on a resident, continuing, conjugal basis.” See In re Marriage of Susan, 367 Ill.App. 3d 926 (2d Dist. 2006); In re Marriage of Sappington, 106 Ill.2d 456 (1985). It is the responsibility of the payor ex-spouse to show that the recipient ex-spouse is involved in a de facto marriage.
The next logical question is: how does someone prove their ex is living with another person on a resident, continuing, conjugal basis? In this instance, conjugal does not mean engaging in a sexual relationship per se, but it does mean acting as husband and wife. For example, the husband/wife relationship “bears the rational relationship to the need for support, not the absence or presence of sexual intercourse.” Thus, the payor ex-spouse must prove that a husband/wife relationship exists, and the recipient ex-spouse will try to show that the relationship he or she is engaged in is not the type intended by the legislature to termination support. See In re Marriage of Miller, 2015 IL App (2d) 140530 (holding that the burden of establishing that the receiving spouse is cohabiting with another is on the party seeking termination of maintenance); see also, In re Marriage of Walther, 2018 IL App (3d) 170289 (3rd Dist. 2018) (holding that the spouse making a motion to terminate maintenance on the basis of cohabitation requires a substantial showing that the former spouse is in a de facto marriage with a third party based on the factors established in Miller which are essentially the Herrin and Snow factors.
Furthermore, being engaged and living with a fiancé(e) does not necessary meet the requirement for cohabitation to terminate support. See In re Marriage of Leming, 227 Ill.App.3d 154 (5th Dist. 1992). In Leming, the recipient ex-wife moved in with her boyfriend and they planned to wed. However, after six months she returned the engagement ring, yet continued to occupy the first floor of his house until she moved out two months later. The court held that “[c]onsidering the totality of the circumstances” the relationship between the ex-wife and her boyfriend did not amount to a “resident continuing conjugal relationship” as to justify terminating maintenance. Id at 161.
The case of In re Marriage of Herrin, 262 Ill.App.3d (4th Dist. 1994) offered a six-point test, dubbed the “Herrin test” (sometimes also referred to also as the Snow test based on the case of In re Marriage of Snow, 322 Ill.App.3d 953 (3rd Dist. 2001). This test expanded the grounds upon which a court could distinguish between a de facto marriage and just a dating relationship. In that case, the recipient ex-wife and her new boyfriend said they were in love and the boyfriend spent the days at her house. However, he returned to his own home to sleep at night, even though it had no utilities. The ex-wife paid for a vehicle for the boyfriend and even sometimes paid his child support. The spend holidays and vacations together and talked about marriage. However, they never married because he would not be able to provide for her like her maintenance payments could. The court came up with six factors to consider when deciding whether a relationship was a de facto marriage or not:
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The length of the relationship;
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The amount of time the couple spends together;
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The nature of activities engaged in;
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The interrelation of their personal affairs;
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Whether they vacationed together; and
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Whether they spent holidays together.
Furthermore, the court in In re Marriage of Weisbruch, 304 Ill.App. 3d 504 (2d Dist. 1999) considered some different factors outlined below since this was a same-sex couple situation and way before Illinois adopted same-sex marriage:
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Buying a home and titling it in joint tenancy;
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Dividing household expenses;
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Sharing a joint account;
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Co-signed loans for each other;
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Listed as co-owners on their cars;
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Named in each other’s wills;
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Were the primary beneficiaries of each other’s life insurance policies;
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Sharing a bedroom;
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Taking vacations together; and
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Sending out joint Christmas cards.
This case based the analysis more on the “financial implications of the relationship” since they were “most relevant to determining the need for maintenance, not the presence or absence of sex.” Id at 105.
In conclusion, we urge you to include a provision on cohabitation in your divorce settlement agreement since you can define the requisite relationship between the spousal maintenance recipient and his or her significant other needed for spousal maintenance to end. However, the term cohabitation must be clearly spelled out and we will help you define “cohabitation” in the agreement.