Cohabitation Terminates Maintenance
by Wes Cowell, updated 24 April 2016 -- suggest a correction
Cohabitation on a "resident, continuing, conjugal basis" terminates maintenance. But "resident" doesn't mean "live together" and "conjugal" doesn't mean sex. "Conjugal" is the hinge-pin of these cases. If you're looking at making (or defending against) a cohabitation claim, you'll need a lawyer. Need advice? Call, leave your info, or scheduleschedule a consult.
The Law: 750 ILCS 5/510 (c) governs termination of child support and maintenance. The law says:
(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment . . . the obligation to pay future maintenance is terminated . . . if the party receiving maintenance cohabits with another person on a resident, continuing, conjugal basis. A payor's obligation to pay maintenance or unallocated maintenance terminates by operation of law on the date the recipient remarries or the date the court finds cohabitation began. The payor is entitled to reimbursement for all maintenance paid from that date forward. . . .
Background: One paying maintenance should not be expected to subsidize a former spouse's second marriage or new spouse. The same should hold true when "the ex-spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not legally formalize it, with the result that he or she can continue to receive maintenance" In re: Marriage of Susan, 856 N.E.2d 1167, 306 Ill.Dec. 72 (2d. Dist, 2006). The law calls for maintenance to terminate "if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." 750 ILCS 5/510(c). "Resident, continuing, conjugal basis" . . . what does that mean?
1985 -- Conjugal Doesn't Mean Sex: Conjugal is Latin for "husband and wife." It has nothing to do with sex. In In re: Marriage of Sappington, 88 Ill.Dec. 61, 478 N.E.2d 376, 106 Ill.2d 456, (Ill., 1985) the former wife took in a live-in, male companion. The former husband sought to terminate the maintenance obligation. At the hearing, the live-in companion testified that he was impotent. The trial court said:
section 510(b) requires proof of acts of sexual intercourse or the right to sexual intercourse and since there was no evidence of sexual intercourse or any indication of attraction between [the former wife] and [the live-in companion] tending toward the establishment of a sexual relationship . . . .
In re: Marriage of Sappington, 478 N.E.2d 376, 106 Ill.2d 456, 88 Ill.Dec. 61 (Ill., 1985)
The appellate court, in a divided opinion, affirmed the circuit court. The Illinois Supreme Court took the case and said both the trial court and the appellate court were wrong:
The first issue we will address is whether the term "conjugal" as used in section 510(b) necessarily requires that the parties engage in sexual intercourse or sexual conduct. We do not believe it does. We believe that a relationship can have a conjugal basis even though there is an absence of any sexual relationship.
. . .
[W]e believe that the legislature intended the term "cohabitation" to have the general meaning of living or dwelling together and intended conjugal to be interpreted as of or belonging to marriage or the married state.
. . .
Maintenance is predicated upon a need for support by the spouse who is to receive maintenance. (citation omitted) We believe that when two people live together, like the [former wife] and the live-in companion], it is the husband-and-wife-like relationship which bears the rational relationship to the need for support, not the absence or presence of sexual intercourse. Therefore, once an ex-spouse paying maintenance has demonstrated that a husband-and-wife-like relationship does exist, it should be incumbent upon the maintenance recipient to demonstrate that the relationship in which he or she is engaged is not the type of relationship which was intended by the legislature to justify the termination of the obligation to pay maintenance.
In re: Marriage of Sappington, 478 N.E.2d 376, 106 Ill.2d 456, 88 Ill.Dec. 61 (Ill., 1985)
1992 -- Even Living Together and Being Engaged Isn't Enough to Terminate; de facto Husband-and-Wife Relationship Is Needed: Erma Jean and Gary Lee Leming divorced in 1987. In March, 1990, Erma Jean moved in with her boyfriend and they made plans to marry. Six months later she gave him back the engagement ring and occupied only the first floor of his house and she moved out entirely two months later. Gary Lee sought to terminate his maintenance obligation. The trial court said "considering the totality of the circumstances, [Erma Jean's] relationship with Mr. Wise does not constitute a "resident continuing conjugal relationship" as such term is interpreted by the weight of existing case law, and accordingly [Gary Lee] is not legally justified in terminating maintenance." In In re: Marriage of Leming, 227 Ill.App.3d 154, 169 Ill.Dec. 108, 590 N.E.2d 1027 (5th Dist., 1992).
Gary appealed but the Fifth District Appellate Court said the trial court got it right:
"the most likely reason the legislature added the provision allowing termination of maintenance when there is conjugal cohabitation is that it intended to end the inequities caused when a former spouse had in fact entered into a husband-wife relationship, although not formalized legally, and was still entitled to maintenance merely because Illinois does not recognize common-law marriages. In re Marriage of Reeder, 145 Ill.App.3d 1013, 1017, 99 Ill.Dec. 648, 495 N.E.2d 1383 (5th Dist, 1986). Thus, courts have held that to prove continuing and conjugal cohabitation, a party must show that the former spouse is involved in a de facto husband-wife relationship, (Reeder, 145 Ill.App.3d at 1017, 99 Ill.Dec. 648, 495 N.E.2d 1383; In re Marriage of Arvin 184 Ill.App.3d 644, 649, 133 Ill.Dec. 53, 540 N.E.2d 919, (2d Dist., 1989)). This requirement is related to the underlying rationale for maintenance, the need for support by the spouse who is to receive maintenance. Reeder, 145 Ill.App.3d at 1018, 99 Ill.Dec. 648, 495 N.E.2d 1383; see also In re Marriage of Sappington, 106 Ill.2d 456, 467, 88 Ill.Dec. 61, 478 N.E.2d 376 (1985). An important consideration is whether the cohabitation has materially affected the recipient spouse's need for support because he or she either received support from the coresident or used maintenance monies to support the coresident. Arvin, 184 Ill.App.3d at 649 [133 Ill.Dec. 53, 540 N.E.2d 919]; Reeder, 145 Ill.App.3d at 1018 [99 Ill.Dec. 648, 495 N.E.2d 1383]; In re Marriage of Bramson 83 Ill.App.3d 657, 663, 39 Ill.Dec. 85, 404 N.E.2d 469 (1st Dist., 1980).
In In re: Marriage of Leming, 227 Ill.App.3d 154, 169 Ill.Dec. 108, 590 N.E.2d 1027 (5th Dist., 1992), quoting In re: Marriage of Caradonna, 197 Ill.App.3d 155, 159, 143 Ill.Dec. 175, 178, 553 N.E.2d 1161, 1164 (2d Dist., 1990).
1994 -- The Six-Point Herrin Test: In 1994, the Fourth District Appellate Court faced a compelling case that lacked evidence to support a finding of "resident," but begged for maintenance to terminate, anyway: Katherine Herrin divorced in 1992 receiving an award of $2,000 / month maintenance. She took up with her boyfriend, Michael Badger. They said they were in love and talked of marriage. Badger spent his days at Katherine's house but slept as his own home . . . which had no utilities. Katherine helped Badger pay for a van (later given to Badger's ex-wife) and occasionally paid his child support. They spent holidays together and vacationed together. Their talk of marriage was always ended, however, by their realization that Badger could not provide for Katherine nearly as well as her maintenance payments from her ex-husband. So they continued to maintain the pretense that their relationship was not "resident" as Badger slept at his "home-with-no-utilities" and Katherine continued cashing her ex's maintenance payments.
So, here was a couple that was the opposite of Erma Jean and Gary Lee Leming (above): Katherine and Michael didn't live together and they said they weren't going to marry. The Herrin court came up with a six-part test to determine whether a de facto husband-and-wife relationship exists. The Herrin test that looks at:
(1) the length of the relationship;
(2) the amount of time the couple spends together;
(3) the nature of activities engaged in;
(4) the interrelation of their personal affairs;
(5) whether they vacation together; and
(6) whether they spend holidays together.
In re Marriage of Herrin, 262 Ill.App.3d 573, 577, 199 Ill.Dec. 814, 634 N.E.2d 1168 (4th Dist., 1994).
The Herrin test greatly expanded the ground by which a court could distinguish between a de facto marriage and a run-of-the-mill dating relationship.
1999 -- It's Not About Sex; It's All About Money: In re: Marriage of Weisbruch, 304 Ill. App. 3d 504, 710 N.E.2d 439, 237 Ill.Dec. 809 (2d Dist., 1999). This case was twelve years before Illinois adopted civil unions and fifteen years before it adopted same-sex marriages. The former wife didn't remarry -- her girlfriend move in. Because of the times, testimony scrupulously avoided sex and romance. Consequently, the Weisbruch court said it isn't about sex, it's all about the money. The couple in Weisbruch :
bought a home titled it in joint tenancy,
the roommate's secretary lived with them for a while,
they divided household expenses -- including the mortgage -- equally,
they had a joint credit union account into which they both deposit their paychecks,
the former wife also deposited her maintenance payments into the account
she testified that the joint account makes it easier to pay the household bills
she and her roommate occasionally borrowed money from each other,
they co-signed loans for each other,
they were listed as co-owners of their respective cars,
they often shopped for food together and share the cost,
they were named in each other's wills,
they were the primary beneficiaries of each other's life insurance policies;
the former wife and her roommate had shared a bedroom twice for a total of 2 1/2 years, once when Robert lived with them and once when Diesel's secretary was staying with them. On those occasions, petitioner and Diesel slept in the same bed,
they took vacations together, traveling to California, Arizona, Pennsylvania, and Michigan,
they exchange Christmas and birthday gifts and have sent out joint Christmas letters,
they had discussed retiring together to Arizona,
BUT . . . "the only affection petitioner and [her roommate] exchanged was an occasional hug. There was no sexual contact or attraction between them. Both occasionally date." The appellate court found the relationship to be "conjugal," in nature, saying:
[I]t is the financial implications of the relationship that are most relevant to determining the need for maintenance, not the presence or absence of sex. Sappington, 106 Ill.2d at 467, 88 Ill.Dec. 61, 478 N.E.2d 376. The most important factor is whether the cohabitation affects the receiving spouse's need for support. Sappington, 106 Ill.2d at 467-68, 88 Ill.Dec. 61, 478 N.E.2d 376; In re Marriage of Bramson v. Bramson, 83 Ill.App.3d 657, 663, 39 Ill.Dec. 85, 404 N.E.2d 469 (1980)
In re: Marriage of Weisbruch, 304 Ill.App.3d 99, 710 N.E.2d 439, 237 Ill.Dec. 809 (2d Dist., 1999), citing Sappington, (emphasis added)
2001 -- "De Facto Marriage" Test Confirmed And Retroactively Applied: In re: Marriage of Snow,322 Ill. App. 3d 953, 750 N.E. 2d 1268, 255 Ill.Dec. 883 (3d Dist., 2001). Remember the six-point Herrin test? That test was created by the trial court and the appellate court said that was a pretty good way to do it. Snow is a case where another appellate district adopted the test created in the Herrin trial court. So, sometimes the test is referred to as the six-point Snow Test.
After their separation and prior to their divorce, Dawn Snow lived in the marital residence and took in a boarder -- Jamie, the much youner neighbor whose mother was moving away. Dawn told Jamie that he didn't have to pay rent because her-soon-to-be former husband was covering the mortgage, but they agreed to split the costs of utilities and food, and Jamie took care of the lawn and pool.
The divorce was final in February 1998 and William paid maintenance until May, 1999. At that point, William's payments were reduced according to a formula in their settlement agreement. Dawn then told the neighbor/boarder, that he'd have to start paying rent. William went back to court to terminate maintenance arguing "continuing, conjugal relationship."
Jamie said he paid rent in cash but had no receipts. Dawn said he never paid rent. Jamie said they had sex three or four time a week, Dawn said they had sex only once after she had too much to drink. They went out to dinner and movies a few times a month and socialized with Dawn's friends but never with Jaime's. They exchanged Christmas and birthday gifts, but didn't comingle funds. Jamie characterized their relationship as "sex partners," Dawn said she was just trying to help a good kid "get on his feet." The appellate court said:
To prove a continuing, conjugal relationship, an ex-spouse must show that the former spouse is involved in a de facto husband and wife relationship. In re Marriage of Leming, 227 Ill.App.3d 154, 169 Ill.Dec. 108, 590 N.E.2d 1027 (1992). To determine if such a relationship exists, courts have examined the following factors: (1) the length of the relationship; (2) the amount of time the couple spends together; (3) the nature of activities engaged in; (4) the interrelation of their personal affairs; (5) whether they vacation together; and (6) whether they spend holidays together. In re the Marriage of Herrin, 262 Ill.App.3d 573, 199 Ill.Dec. 814, 634 N.E.2d 1168 (1994). . . .
Here, Dawn and Jaime lived together for a year and a half. They socialized together frequently and engaged in such dating activities as dinners, movies, and drinks. Although Dawn testified that they did not have a sexual relationship, we defer to the trial court's finding that Jaime's account of their sexual relationship was more credible. They exchanged Christmas and birthday presents. They split household chores, and they socialized with Dawn's friends. Based upon the totality of the circumstances, we find that the trial court's finding of a de facto husband-wife relationship between Dawn and
Snow v. Snow, 322 Ill. App. 3d 953, 750 N.E. 2d 1268, 255 Ill.Dec. 883 (3d Dist., 2001).
The maintenance payments were terminated as of the date that Dawn began to cohabit with Jamie; that is, during the marriage. This is now codified in Illinois law at 750 ILCS 5/510(c) (see, below).
2015 -- Totality Of Circumstances; IRMO Miller: So, these cases seemed to present a muddled problem:
Herrin said: "it's not about the financial entanglements, it's about the six point test"
Weisbruch said: "It's all about the financial entanglements."
Snow said: "It's not about the money, it's about the six point test."
Thank goodness for Lorena and Jeffrey Miller and Lorena's boyfriend, Michael Meyers. Lorena and Jeffrey divorced in 2007 after 25 years of marital bliss. Lorena met Michael on Match.com in 2006 and they began dating exclusively in 2007. Michael spent weekends at Lorena's golf-club townhouse a few times each month. The frequency of his stay-overs increased over time and they developed a schedule: Michael would show up late Thursday night after playing in his band, he'd work from Lorena's home on Fridays, and they'd golf on the weekends. In the winter, he'd stop by about twice a month. They took 14 trips. They spent some Christmases and Thanksgivings together. Michael once brought up the subject of marriage but Lorena told him to drop it and never bring it up again. He didn't. They scrupulously paid their own way on trips and at dinners and golf, but occasionally bought gifts for each other. By 2011 the spark had faded and when Michael lost his job in 2013, they parted ways, for good.
The trial court applied the six-point Herrin / Snow test, tucked the facts in the appropriate pigeon holes, and concluded Lorena's and Michael's relationship constituted a de facto marriage starting in January, 2012 and ordered Lorena to reimburse Jeffrey $70,000 of maintenance payments. Ouch. Lorena appealed.
The appellate court was troubled by the formulaic application of the Herrin / Snow test and said that it just wasn't good enough. The Second District Appellate Court said a trial court should consider the gravitas of the facts presented and assess the totality of circumstances:
The six-factor analysis that the trial court applied is insufficient to distinguish an intimate dating relationship from a de facto marriage if unaccompanied by an understanding that the facts falling into each category must achieve a gravitas akin to marital behavior. The common-law standard of a de facto marriage is codified more precisely as cohabitation (with its three elements being resident, continuing, and conjugal). Therefore, while mindful that each case will present unique circumstances, we note that here the absence of certain traditional components of a marital relationship, such as intended permanence and mutual commitment (speaking to the continuing and conjugal elements), a shared day-to-day existence (speaking to the conjugal and residential elements) and the shared use and maintenance of marital resources (speaking to the residential element) create[s] a significant hurdle . . . . The trial court did not adequately consider the gravity (or lack thereof) of facts that fell into each of the six categories, nor did it adequately consider the absence of certain traditional components of a marital relationship.
. . . .
¶ 47 Putting into proper perspective the usefulness of the six-factor analysis requires an examination of its origins. The six-factor analysis originated in Herrin, 262 Ill. App. 3d at 577. The Herrin court correctly began with the premise that, in order to determine whether a de facto marriage exists, the trial court must look to the totality of the circumstances. Id. The court then listed with approval the factors considered by the trial court in that case. Id. Courts subsequently cited these six factors, without discussion, as though the factors were sufficient to encapsulate the totality of the circumstances in all cases. See In re Marriage of Thornton, 373 Ill. App. 3d 200, 209 (2007); Susan, 367 Ill. App. 3d 926, at 929; In re: Marriage of Sunday, 354 Ill. App. 3d 184, 189 (2004); In re Marriage of Snow, 322 Ill. App. 3d 953, 956 (2001). Notably, the supreme court has not adopted the six-factor analysis in any manner, let alone adopted it as sufficient to encapsulate the totality of the circumstances in all cases.
¶ 48 While we agree that the six factors were compelling in Herrin, we disagree that the six factors are sufficient to encapsulate the totality of the circumstances in all cases. The six factors focus greatly on the emotional and social components of a relationship as opposed to practical and financial aspects that life partners share. In point of fact, only factor four, the "interrelation of personal affairs," arguably encompasses the more practical components of a marriage-like relationship. And, even though the six factors focus on the emotional components of a potential de facto marriage, we believe that the factors miss a key emotional factor that is likely present in any de facto marriage: intended permanence and/or mutual commitment to the relationship (as will be discussed further, infra ¶ 67). Moreover, even though the Herrin court used words that, under a plain reading, tend to trigger a search for emotional or social components, i.e., time spent together, nature of activities, interrelation of personal affairs, vacations and holidays spent together, the Herrin case itself turned in large part upon significant practical and economic aspects of the relationship: the ex-wife provided a house with working utilities for her partner, furthered his career by taking out a loan for a work van and computer, and paid his child-support obligations. Herrin, 262 Ill. App. 3d at 577-78. A fair reading of Herrin leads us to the conclusion that, while helpful in most instances, the six-factor analysis was never intended to be used as the test to find a de facto marriage.
¶ 49 Indeed, if the six-factor analysis were to be used as the test to find a de facto marriage, a more careful effort should be made as to its wording. On the one hand, factors three and four are very broad: the "nature" of the activities and the "interrelation of their personal affairs." On the other hand, factors five and six are narrow (vacations and holidays) and themselves fit into factors three and four. In other words, factors three and four are but slots in which to place actual facts, either positive or negative, whereas factors five and six are actual positive facts, which happened to be among the totality of the circumstances in Herrin.
In Re: Marriage of Miller, 2015 IL App (2d) 140530.
Maintenance Terminates Retroactively to Commencement of Cohabitation: When a maintenance recipient cohabits with another on a continuing conjugal basis, maintenance is supposed to terminate retroactively, going back to the commencement of the cohabitation. The law says:
Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated . . . if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. A payor's obligation to pay maintenance or unallocated maintenance terminates . . . on . . . the date the court finds cohabitation began. The payor is entitled to reimbursement for all maintenance paid from that date forward.
Cohabitation Counts Even Prior to Divorce: In In re: Marriage of Toole, Patrica Toole separated from Michael in February, 1990. She and their two daughters moved to California to live with David Hughes and lived with him until May, 1994 when -- in the middle of her divorce trial in which she was seeking maintenance -- she moved from Hughes's home to an apartment in Arizona. Patricia claimed she needed maintenance to make ends meet. The Second District Appellate court said she was out of luck -- the period of cohabitation with Hughes torpedoed her hopes for an award, saying:
"There should be no distinction between whether petitioner's obligation is terminated before it ripens or after maintenance is ordered. If a party died before maintenance was awarded, or if a party remarried before the award, there would be no reason for awarding maintenance only to then require it to be terminated pursuant to section 510(c). Similarly, if a party who seeks maintenance cohabits before maintenance is awarded, the award should be denied pursuant to section 510(c). [Citation.]"
In re: Marriage of Toole, 273 Ill. App. 3d 607, 653 N.E.2d 456 (2 Dist., 1995) (citing In re: Marriage of Klein, 231 Ill.App.3d at 905, 173 Ill.Dec. 335, 596 N.E.2d 1214 (1992)
Unallocated Support and Maintenance Must Be Bifurcated: Maintenance is to terminate retroactively going back to the date that the court identifies as the commencement of the cohabitation (or remarriage). Child support, of course, is (usually) unaffected by a parent's cohabitation and is only modifiable going back to the date of notice of the filing of a motion to modify support. So what do we do when maintenance and child support are lumped into a single "unallocated" payment?
Child support is a component of "unallocated support and maintenance." Illinois law (750 ILCS 5/510(a)) says child support cannot be modified retroactively. Illinois law (750 ILCS 5/510(c)), however, also says that unallocated maintenance can be terminated retroactively. In cases of unallocated support and maintenance, you'll have to put on enough evidence to permit the court to identify the child support component of the unallocated award. The maintenance component may be terminated retroactively . . . the child support component may not.
Cohabitation Doesn't Terminate Maintenance in Gross: "Maintenance in gross" is a type of maintenance mostly used for tax planning purposes. A maintenance in gross award allows for is a specific amount of money to be paid from one spouse to another -- usually where certain tax advantages may be gained. Maintenance in gross is always non-modifiable. It may be payable in a single, lump sum payment or in periodic installments. The Illinois Supreme Court has defined maintenance in gross as a "nonmodifiable sum certain to be received by the former spouse regardless of changes in circumstances." In re: Marriage of Freeman, 106 Ill.2d 290, 298, 88 Ill.Dec. 11, 478 N.E.2d 326 (1985). Maintenance in gross is in the nature of a property settlement and creates a vested interest in the recipient. Because of that, maintenance in gross isn't even terminable upon the recipient's remarriage.
So, if you don't specifically say that a particular award is "maintenance in gross," how do you know it when you see it? That was the problem in In re: Marriage of Michaelson, 359 Ill. App. 3d 706, 834 N.E.2d 539, (1st Dist., 2005). Robert and Anna Michaelson's divorced in July, 1998 after nine years of marriage. Their settlement agreement read:
3.1 Amount. Husband shall be obligated to pay to Wife, as and for spousal support, the sum of $45,000 per year . . . for a period of eight (8) years, for a total of Three Hundred Sixty Thousand ($360,000) Dollars. Said spousal support shall be paid to Wife in ninety six (96) equal monthly installments of Three Thousand Seven Hundred Fifty ($3,750.00) Dollars.
. . . .
3.3 Termination of Maintenance. The maintenance payment(s) / obligation provided for by this agreement shall terminate completely, only after the payment of all monies due to Wife are paid in full, regardless of any other changed circumstances.
. . . .
5.5 Modification. The provisions of this agreement may be modified or rescinded by the written consent of both parties; however, the parties agree that they will not petition the court for a modification unless there is a substantial change in circumstances.
Anna moved in with her new boyfriend / fiance and Robert stopped sending checks to Anna in January, 2004; instead he deposited them into an escrow account. Anna remarried. Robert thought he shouldn't have to pay any more maintenance and Anna disagreed.
Robert argued that the maintenance payments were not "maintenance in gross," (the term was never used in their settlement agreement) but rather, were "periodic payments for a fixed period of time" as in In re: Marriage of Harris, 284 Ill. App. 3d 389, 290-92, 291 Ill.Dec. 875, 672 N.E.2d 383 (1996)." The appellate court considered his argument, but said:
Here, paragraph 3.1 awards a specific amount of maintenance, $360,000, payable to Anna in 96 monthly installments of $3,750. The primary distinguishing characteristic between periodic maintenance and maintenance in gross is the definitive sum and vesting date of maintenance in gross. In re: Marriage of Hildebrand, 166 Ill.App.3d 795, 799, 117 Ill.Dec. 644, 520 N.E.2d 995 (5th Dist., 1988).
In addition, the language of paragraph 3.3 providing that Robert's maintenance obligation terminates only after "the payment of all monies due to Wife are paid in full, regardless of any other changed circumstances of the parties," clearly conveys the presence of maintenance in gross. Because the maintenance obligation is in gross, there is no need to specify that maintenance is nonmodifiable; maintenance in gross is, by definition, nonmodifiable.
In re: Marriage of Michaelson, 359 Ill. App. 3d 706, 834 N.E.2d 539, (1st Dist., 2005)
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