In Illinois maintenance is also called alimony. A critical question that involving maintenance is when it ends.
Does maintenance terminate if a am living with someone?
Generally, maintenance in Illinois terminates if someone lives with another person on what is called a “resident, continuing, conjugal basis.” The terms resident and continuing appear clear enough. The term conjugal generally means “marriage-like” — like a marriage. Illinois case law addresses the factors which come into play in determining whether a relationship is “marriage-like.” These factors include whether there is a financial impact because of the relationship and the degree to which the relationship is like a marriage or more of a house sharing arrangement.
Can you tell me a bit more about the factors that a court would use to determine if maintenance ends based upon the living situation?
The factors include:
(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.
What if I live with another person before a divorce for a relatively short period of time? Surely this is not enough to disqualify me from maintenance.
Not necessarily. Illinois divorce law generally holds that what is called “pre-judgment conjugal cohabitation” may disqualify a person from receiving maintenance.
Does maintenance automatically terminate or would I need to go to court?
In 2016, Illinois law was changed to provide:
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. ***
A party receiving maintenance must advise the payor of his or her intention to marry at least 30 days before the remarriage, unless the decision is made within this time period. In that event, he or she must notify the other party within 72 hours of getting married.
But still you need to consult with a lawyer because there may complexity of the issues involved.
Are there cases where maintenance does not terminate due to living arrangements?
Yes. A marital settlement agreement (if it is clear enough and well drafted) can provide that maintenance will not terminate in the event of conjugal cohabitation. Usually this is a part of negotiations. The critical issue is how the settlement agreement is drafted.
What is Illinois law regarding the termination or modification of maintenance?
Illinois law provides detailed legislation regarding maintenance termination or maintenance modification. Illinois law provides a list of standards for the court to consider in addition to the standards set forth in initially determining maintenance. These standards are:
- any change in the employment status of either party and whether the change has been made in good faith;
- the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
- any impairment of the present and future earning capacity of either party;
- the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;
- the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;
- the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;
- the increase or decrease in each party’s income since the prior judgment or order from which a review, modification, or termination is being sought;
- the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
- any other factor that the court expressly finds to be just and equitable.
Do you believe this impacts Illinois’ cases in which there is a maintenance review?
Yes. Before the 2004 legislation, there was very little guidance in the statute as to the standards to be used in reviewing maintenance, modifying maintenance or terminating maintenance (alimony). For example, there was case law in Illinois stating that the court should not consider post-divorce good fortune of the payor of maintenance. It appears that this legislation trumps this line of cases in that it would allow the court to consider the increase or decrease in each party’s income after the divorce.