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Can Cohabitation Lead To Termination of Spousal Maintenance? Yes So Be Careful!

Based on the Illinois statute and unless modified by the agreement of the parties, spousal maintenance (formerly known as alimony) terminates upon the occurrence of one of the following events: death of the spouse receiving maintenance, death of the spouse paying maintenance (though there are often life insurance provisions to protect the party receiving support in this instance), the remarriage of the party receiving maintenance or if the party receiving the maintenance cohabits with another person on a resident, continuing conjugal basis.

The rationale behind termination based on cohabitation is to prevent the inequity created when an ex-spouse receiving maintenance becomes involved in a spousal relationship, but does not legalize it so that he or she can continue to receive maintenance.

The burden is on the party paying support to show that that their former spouse is now involved in a “de facto” marriage, meaning essentially that the couple lives together in a domestic way, the same way they would if they were legally married

The following factors are considered by a court in determining if a party is cohabitating:

Length of the relationship: the length of relationship is used as a proxy to help determine if a relationship is in fact a substitute for a marital relationship. The longer the relationship, the more marriage-like it is.
Amount of time a couple spends together: including how many nights are spent at each other’s residence, if separate residences are maintained, how many meals are shared and time with each other’s families, etc.
Nature of activities engaged in: socializing and/or dining out are generally not seen as “marital” activities. The court will look to the mundane such as cleaning, laundry and paying bills.
Interrelation of personal affairs: finances are considered heavily, especially the co-mingling of assets, one person funding the needs of the other, sharing expenses for activities, and benefitting from the others retirement, pension or insurance plans. In addition to finances and comingling of accounts, courts will look to other factors including: sharing of household chores, vehicles, household errands, caring for the others home/children/pets, lending money, where mail is received, and keeping personal items and clothes at the other’s residences.
Vacations and Holidays: the frequency, shared costs or split costs, other attendees, number of trips together (as compared to the number of separate trips), and locations (i.e. visiting family).
The modern approach has been to consider each of these factors individually to determining if the factor weighs in favor of the party paying support, the party receiving support, or if it is considered neutral and then considering all of the factors in totality. If, based on the totality of the circumstances (which is unique to every case) the relationship is determined to be a de facto marriage as opposed to a “dating” relationship, maintenance will be terminated permanently.

In the past, the need for support was indirectly considered through the above-mentioned factors. Recently, the trend has been to consider whether the spouse receiving maintenance has formed a relationship where the partners look to each other for support, not whether the support provided through the new relationship is in fact adequate or comparable to the support being paid.

While cohabitation is a personal choice and a growing trend amongst couples, if you are in a relationship with someone and still receiving maintenance, you should be certain to talk with your attorney and discuss all of the factors and understand your risk. Failing do so could truly impact your financial security.

Ashley D. Wood is an associate with Katz & Stefani.

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