My Ex Lives With a Significant Other - Do I Still Owe Spousal Support?

 Posted on October 01, 2020 in Divorce

Starting on January 1, 2015, the Illinois maintenance statute changed to provide a formula that calculates a party’s maintenance obligation to the other party in a divorce.  The change was meant to provide more certainty with respect to how much maintenance someone will be paying and for how long. However, one thing that did not change the fact that maintenance will not be awarded and can be terminated if the party receiving maintenance “cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510. What does that mean you ask? The answer is not as straightforward as you might imagine and can lead to uncertain results.

Assume John married Annie in 2008 and recently decided that he wants to get a divorce because he believes that Annie has taken up with a lover in the past couple of months. On November 1, 2014, she moved out of the marital residence and into the home of her long-time friend, Al. However, before she left, she asked John if he would help her get her own apartment to live in while the divorce was pending. John refused to give her a dime and she has nowhere else to go.  John believes that Annie may be having an affair with Al because he saw a picture of him kissing her on the cheek on Facebook and he’s always suspected that she had feelings for him. Annie, however, denies that she is in a romantic relationship with Al, has only lived in his house for about a month, spends a few nights each week with Al, sleeps in a separate room than Al, does not contribute to bills, and does not have any joint accounts with him.  Annie has, however, gone on a weekend trip to Lake Geneva with Al, and has spent Thanksgiving with him. With these set of facts, would Annie be entitled to maintenance from John?

Under Illinois law, before awarding a party maintenance in divorce proceedings, the court must consider factors listed in Section 504 Illinois Marriage and Dissolution Act providing for initial maintenance awards in addition to those listed in Section 510, providing for modification and termination of maintenance awards. This means that even if you are still married if you believe your spouse may have moved in with a significant other, you should tell your attorney so that they can determine whether a basis to negate any maintenance award exists.  After an initial maintenance award is made, however, the court will then consider only the factors listed in Section 510 to determine whether the award should terminate.

Section 510(c) provides that “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 upon the death of either party, the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510(c).

If the payor believes that the recipient is cohabitating with another person on a resident, continuing conjugal basis, the payor must first prove that a “defacto husband and wife relationship” exists between the recipient and another person. Once this is proven, the burden then shifts to the recipient to show that the relationship is not the type of relationship which the law intends to terminate or preclude maintenance.

Illinois case law lists various factors that a court will consider when determining whether preclude or terminate a maintenance award. A court will consider 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.

Illinois courts have found that the following types of activities tend to prove cohabitation on a continuing and conjugal basis:

• If the couple has been residing together more than a few months before the court hearing;
•  If the couple establishes joint checking, savings, investment, or other accounts and comingles funds;
•  If the couple shares meals, household chores, bills, or credit accounts;
•  If the couple has listed each other as beneficiaries on life insurance, retirement, or other assets;
•  If the couple has named the other in his or her will; and
•  If the couple exchanges holiday and birthday gifts, takes vacations together, and spends holidays together.

Interestingly, the existence of a sexual relationship is not required to prove that the relationship exists sufficient to terminate maintenance. Courts have held that same-sex couples that refer to themselves as “friends” and impotent males have been capable of conjugal relationships sufficient to preclude or terminate maintenance.  This is good for the payor because oftentimes, there is little evidence available to prove a sexual relationship exists.

Another factor the court will consider is whether the cohabitation has materially affected the recipient’s need for support. For instance, if the recipient is living with someone but receives no financial assistance whatsoever, this may weigh in the recipient’s favor. However, this factor alone is not sufficient to defeat a petition to terminate maintenance when all other factors demonstrate the relationship is continuing and conjugal. Courts have stated that even if the recipient is living with a third party that makes little or no money, if the relationship exists, it is not the payor’s responsibility to make up for the new defacto spouse’s lesser income.

So will John be ordered to pay Annie maintenance? He may, it will be up to the judge to decide based on the facts of the specific case.

For more information on maintenance awards, contact one of our attorneys.