What is Cohabitation?

Published in Chicago Lawyer Magazine, June 2018
by Daniel R. Stefani

If a spouse receiving maintenance cohabits with another person on a resident, continuing conjugal basis in accordance with Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, maintenance terminates retroactive to the date the Court finds that the payee spouse or ex-spouse has cohabited. As a result, the payee spouse then must refund any maintenance paid after the date the Court finds cohabitation. A payor spouse who seeks termination of their maintenance obligation has the burden of establishing that the payee spouse is cohabiting on a resident, continuing conjugal basis. It is the payor spouse’s burden to make a “substantial showing that the former spouse is involved in a de facto husband and wife relationship with a third party”.

There have been several Appellate Court cases through the years examining what factual circumstances warrant a finding of cohabitation and therefore termination of maintenance. The case law is fairly clear that the Court should examine a totality of circumstances but through the years the case law has identified six non-exclusive factors. Namely, (1) the length of the relationship; (2) the amount of time spent together; (3) the nature of activities engaged in; (4) the interrelation of personal affairs (including finances); (5) whether they vacation together; and (6) whether they spend holidays together. The case law is also clear that each case turns on its own facts because “just as no two relationships are alike, no two cases are alike”.

Through the years, while Courts have analyzed the non-exclusive factors listed above, there seems to be little consistency which is understandable when the legal burden is based on a totality of the circumstances. It is also impossible to identify one specific factor or set of factual circumstances that are dispositive in proving cohabitation. Essentially, the Court is charged with reviewing all of the factual circumstances and if it feels that the facts give the appearance of a de facto husband and wife relationship, then cohabitation is proven.

The Third District Appellate Court of Illinois rendered a recent decision on April 3, 2018 in the case of In re Former Marriage of Walther (2018 Ill.App.3d 170289). In Walther, by a 2-to-1 decision, the Appellate Court reversed the Trial Court’s ruling that the ex-husband failed to prove that cohabitation by his ex-wife and a third party named Christopher. In finding that, the Trial Court’s denial of his petition to terminate maintenance was contrary to the manifest weight of the evidence, the Court reversed, found cohabitation, and remanded with directions to the Trial Court to determine the date at which the payor’s maintenance obligation terminated and order a refund of any maintenance paid after that date.

Below are the six factors and the evidence that was presented to the Trial Court and the Appellate Court’s analysis of same.

First, the Court looked at evidence of the length of the ex-wife’s relationship with Christopher. The Appellate Court found that the relationship lasted nearly two years and began during the pendency of the ex-husband and ex-wife’s separation and continued during the pendency of the parties’ divorce. While the ex-wife maintained a separate apartment during this time, the Appellate Court found that almost one year of the parties’ nearly two year relationship included the wife staying at Christopher’s house overnight. The Court found that those facts gave the appearance of a de facto husband and wife relationship.

Second, the Court examined the evidence of the amount of time they spent together, including the fact that the ex-wife prepared meals at Christopher’s house, shared a bedroom with him and assisted cashing checks for his business, and therefore, the Appellate Court inferred that they spent a substantial portion of each day together.

Third, the Court looked at the nature of their activities, including the fact that they had a monogamous sexual relationship, attended concerts together and went on trips with overnight stays. The Court also looked to the fact that the ex-wife did his laundry, purchased groceries for them and had unfettered access to Christopher’s house. The Court also looked to a post on Facebook with photographs of the ex-wife, Christopher and their respective daughters from their prior marriages.

Fourth, the Appellate Court looked at the interrelation of the ex-wife and Christopher’s personal affairs, including finances. While many of the ex-wife’s personal affairs were not interrelated with Christopher’s, including her finances, driver’s license, vehicle registration and her daughter’s school registration, the Court still found enough evidence to conclude that the ex-wife had interrelated much of her personal affairs with Christopher’s.

Fifth, the Court looked to whether the ex-wife and Christopher vacationed together. Although they had traveled together, they were not lengthy trips and the ex-wife testified that she and Christopher split the costs of the trips. The Appellate Court found that these trips were vacations and that the evidence indicated a de facto husband and wife relationship.

Finally, the Court looked at whether the couple spent holidays together. The Appellate Court concluded that the testimony indicated that the ex-wife spent all major holidays with Christopher in 2015 and others at the beginning of 2016, which provided further evidence of a de facto husband and wife relationship.