In Illinois, maintenance is also called alimony. A critical question involving maintenance is–when does maintenance end?
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 are clear enough. The term conjugal generally means “marriage-like.” Illinois caselaw addresses the factors that come into play in determining whether a relationship is “marriage-like.” These factors include whether there is an actual full-time living arrangement, the financial impact of the relationship, and the degree that the relationship is marriage-like 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.
Yet caselaw provides that the court does not simply apply a six-factor test. The court examines whether based upon the totality of the circumstances there is resident-continuing, conjugal cohabitation. The court distinguishes between what’s simply an “intimate dating relationship” from a relationship that is more like a marriage and has hallmarks of potential permanence.
What if I live with another person before a divorce for only 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” can disqualify a person from receiving maintenance. So, it depends on the nature of the relationship during that time. The length of the relationship is considered but it’s one factor among others.
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 you need to consult with a lawyer because of the complexity of the issues.
Are there cases where maintenance does not terminate due to living arrangements?
Yes. A marital settlement agreement (if sufficiently clear) can provide that maintenance will not terminate in the event of conjugal cohabitation. The critical issue is how the settlement agreement is drafted. And sometimes, one might try to negotiate for a waiver of maintenance in exchange for getting substantially more of the marital estate, if the potential maintenance recipient is considering entering into a marriage-like relationship after the divorce.
What is Illinois law regarding terminating maintenance but not just based on cohabitation?
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 factors 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.
Please also see Gunnar J. Gitlin’s article regarding termination of maintenance due to conjugal cohabitation and more particularly, Gitlin on Divorce: A Guide to Illinois Family Law.