Terminating Maintenance Upon Cohabitation with Another Person

The issue as to whether maintenance terminates when one party enters into a new relationship has been a recurring topic in the Illinois Appellate courts this year. Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act states that "the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis."

This provision was created in order to eliminate "the inequity created when the ex-spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not legally formalize it." In re Marriage of Herrin, 262 Ill. App. 3d 573, 577, 634 N.E.2d 1168, 199 Ill. Dec. 814 (1994). Therefore maintenance will be terminated on the basis of cohabitation only if the evidence shows that a de facto husband-and-wife relationship exists.

In determining whether a de facto husband-and-wife relationship exists, the court uses a non-exhaustive list of factors including: (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. However, the mere existence of a romantic relationship does not support termination of maintenance.

Comparing two recent cases can help illustrate how the Court analyzes the issue. The Fourth District upheld the trial court’s decision that maintenance should be terminated when former wife entered into a new relationship. Osborne v. Osborne, 2016 IL App (4th) 150271-U. Despite the relationship not being exclusive, the court still considered it a de facto husband and wife relationship because the couple shared a residence, comingled funds, and engaged in a long-standing sexual relationship.

In contrast, The Fifth District held that maintenance was not terminated when former husband failed to prove that former wife was cohabiting with a new partner. In re Phillips, 2016 IL App (5th) 150233-U. In this case, the couple spent a significant amount of time together, including taking vacations and attending family events together. However, the court did not consider them to be a de facto husband and wife relationship because they maintained separate residences, did not commingle assets or accounts, and did not otherwise share expenses.