Do I Still Have to Pay? - A Look at Maintenance and Cohabitation

Mr. and Mrs. Jones sadly divorce. Mr. Jones is ordered to pay Ms. Jones maintenance. Thereafter, he finds out another man is living in Ms. Jones' home. He suspects that this other man is Ms. Jones' new boyfriend. Mr. Jones seeks to terminate his maintenance payments on account of the boyfriend's cohabitation with Ms. Jones.

This article explores how courts have interpreted maintenance obligations with respect to cohabitation. Should Mr. Jones continue to pay? What is needed to prove that the new boyfriend meets the standard of "resident, continuing, conjugal cohabitant" necessary to terminate maintenance?

The rationale behind termination of maintenance when resident, continuing, conjugal cohabitation exists is the inequity created 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. IRMO Lambdin, 245 Ill. App. 3d, 797, 801. Termination, however, requires a showing that the recipient spouse is involved in a de facto husband-wife relationship. In Lambdin, the husband unilaterally terminated maintenance on his belief of cohabitation. He stated that the only reason that he was not paying was for this reason, and not because he was unable to pay maintenance. The trial court concluded he failed to sustain his burden of proof that a conjugal, residential cohabitation relationship necessary to terminate the maintenance order. Lambdin, at 808-09.

While proof of sexual conduct between the spouse receiving maintenance and the person with whom the spouse is living is no longer necessary to establish cohabitation on a conjugal basis, something more than merely living with another person of the opposite sex is required. Lambdin, at 801. The burden of establishing a de facto husband-wife relationship rests with the spouse seeking to terminate maintenance. IRMO Johnson, 215 Ill. App. 3d 174, 180.

The effect of the relationship on the financial need of the recipient party constitutes a factor for the court to consider in determining whether the required relationship exists. IRMO Sappington, 106 Ill. 2d 456, 467. In determining the nature of the relationship between ex husband and ex wife and deciding whether that relationship could be distinguished from weekend visits or a merely "dating" relationship, courts will look at the following factors to define that relationship: (1) its length; (2) the amount of time wife and alleged boyfriend spent together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together. These factors are balanced on a totality of circumstances. IRMO Herrin, 262 Ill. App. 3d 573, 577; IRMO Susan, 367 Ill. App. 3d 926.

In IRMO Frasco, 265 Ill. App. 3d 171, 179 the court found that support cannot be controlling and in itself does not defeat a petition to terminate maintenance when all other factors demonstrate a resident, continuing, conjugal relationship exists. While the trial court can consider the financial interaction between the interested parties, that factor is not controlling; if the court finds the required relationship exists based on its assessment of the totality of the circumstances it need not make any specific finding as to the maintenance recipient's financial need.

In Johnson, the court held the evidence presented did not establish a continuing, conjugal relationship between the ex-wife and her male friend so as to justify the termination of her maintenance. In that case, there was no evidence of a sexual relationship, no evidence of sharing expenses, and no evidence that the man with whom the ex-wife had a relationship had paid any of her expenses. There was evidence to show the ex-wife liked living at the man's apartment, they behaved affectionately toward each other and the man admitted he was moving his "'girl friend's'" belongings into his apartment in the near future. However, the court concluded, at most, this evidence established a dating relationship (different from a continuing, conjugal relationship). Johnson, 215 Ill. App. 3d 174, 180.