Approximately 1996 or so, I spoke to the Lake County Bar Association Family Law Seminar on cohabitation. At that time, I had read and reviewed all the cases in Illinois since the IMDMA was passed in 1977 that dealt with cohabitation. The cases were all summarized in a chart with an accompanying article. The article and chart were published in the ISBA Family Law Section Council Newsletter. That is not available on line through the ISBA but the material is in the articles section of my web site.
Since that work was done, there have been several cases dealing with cohabitation as a means of terminating maintenance payments. These newer cases have significantly changed the law in this area so it is time to revisit the issue.
Thanks to my associate, Michael Strauss, for legal research and locating all the cases.
In almost chronological order, and some are in the prior materials, here are the cases:
IRMO Harris, 203 Ill. App. 3d 241 (1st Dist, 1990) is not a cohabitation case. In it, the wife remarried, her maintenance ended. The subsequent marriage was annulled, or as the statute calls it, declared invalid. She wanted to reinstate the maintenance. The trial and appellate courts both said that once the maintenance terminates by operation of law, the subsequent annulment does not reinstate the maintenance.
The same thing should apply for cohabitation. It does. The Second District held that pre judgment cohabitation prohibits the trial court from granting maintenance at the time of the judgment. IRMO Toole, 273 Ill.App.3d 607 (1995).
An interesting issue is when does the maintenance terminate. The answer appears to be different for cases of pure maintenance and cases in which the maintenance and child support are unallocated and paid in one payment all designated unallocated maintenance and child support. For the latter, since the cessation of the support upon cohabitation would also cease and/or modify child support, the ending date is the notice of the filing of the petition to modify or terminate. IRMO Hawking, 240 Ill. App. 3d 419 (1st Dist. 1992); IRMO Elenewski, 357 Ill. App. 3d 504 (2005) For the former, pure maintenance, the maintenance ends upon the start of the cohabitation, not the notice of the filing of the petition. IRMO Gray, 731 N.E. 2d 942 (2nd Dist. 2000).
In IRMO Weisbruch, 304 Ill. App. 3d 99 (2nd Dist. 1999) the court dealt with the issue of same sex cohabitation. The wife purchased a house with another woman. They shared the expenses, including the mortgage equally, they had a joint checking account into which they both deposited paychecks and the recipient deposited the maintenance payments. They had borrowed money from each other. They are the beneficiaries of each other’s life insurance policies and retirement accounts. They took vacations together. They exchanged gifts. They sent out joint Christmas letters. They denied a sexual relationship. The trial court found cohabitation and terminated the maintenance. The wife appealed.
The appellate court affirmed. It found that there need not be a sexual relationship citing IRMO Sappington, 106 Ill. 2d 456 (1985). “The most important factor is whether the cohabitation affects the receiving spouse’s need for support.” The court noted the anomaly that even if the new partner did not meet all the financial needs of the recipient, the maintenance still ended due to the cohabitation, the same as remarriage, because the legislature said that those were terminating, not modifying, events.
The burden of proof, according to the Weisbruch court, is preponderance and the standard of review is the manifest weight of the evidence, not abuse of discretion. Thus if the findings and decision of the trial court are supported by the evidence, the trial court will be affirmed. The result is that each of these cases only gets one chance to prevail-the trial court. Seldom is the trial court reversed on appeal if there are no legal errors and if there is evidence to support the decision.
IRMO Elenewski, 357 Ill. App.3d 504 (4th Dist. 2005) is not a cohabitation case. It is an unallocated maintenance and child support case in which the recipient wife remarried. The facts are important. In August 2003, husband filed a petition claiming wife was cohabiting since April 2002. Wife admitted that she and the paramour had been living together since May 2002 and that she married him on June 22, 2002. In November 2003, husband filed a second petition to terminate the unallocated payments as of the date of the marriage.
The trial court terminated the unallocated support as of the date of the filing of the first petition, August 2003 and set the monthly child support at $2181.97 from then forward. Husband appealed.
The Fourth District held that because unallocated support is partly child support, modification could only be retroactive to the date of filing. The recipient of child support is entitled to believe the ordered payments are definite until a court tells her otherwise. A recipient of unallocated child support should not have to take the risk that, upon allocation, a trial court will set child support for past periods at the low end of the range.
IRMO Michaelson, 834 N.E. 2d 539 (1st Dist 2005) is a case in which the court had to determine if the maintenance was terminable on cohabitation and subsequent remarriage or was it maintenance in gross and thus not subject to termination or modification. The trial court held maintenance in gross and the appellate court affirmed.
Maintenance in gross is a non-modifiable sum certain to be paid and received regardless of any change in circumstances. The sum is in the nature of a property settlement. It is vested at the time of the judgment. Remarriage does not end it. Maintenance in gross by definition is not modifiable.
The husband had his termination petition dismissed, the wife’s petition for rule for non payment was granted, the husband had to pay all of her attorney fees. The appellate court affirmed all of this.
The lesson is being careful how you draft your agreements. Say what you mean. Mean what you say. Make sure that all the parties and attorneys understand the same thing. Cover it in the prove up so that there are neither questions nor surprises later.
The next case is IRMO Susan, a Second District opinion decided Oct. 6, 2006. 367 Ill. App. 3d 926 The trial court found cohabitation. The Appellate court affirmed using the manifest weight of the evidence standard. The wife and her boyfriend, Donald Borski, live 5 miles apart. They have been dating for over three years. They each maintain their own dwelling. One to two evenings a week, she has dinner at his house. Two to three evenings a week she is at his house to watch television or do some other activity. They often sleep at each other’s house. They have spent holidays together. They sent out Christmas cards signed, “Love, Mom and Don”. They have gone on vacations together.
The trial court found that there was a de facto marriage even though there was no commingling of funds nor did either provide monetary support to the other.
At least in the Second District, if you are seeking to terminate maintenance, choose your theory. Either there is the financial intertwining or there is a de facto marriage. If you are fortunate, there are both.
The last case is IRMO Thornton, 373 Ill.App.3d 200, 867 N.E.2d 102, 310 Ill.Dec. 789
(3rd Dist. 2007). Parties get divorced. Wife had the husband’s brother move in to her house out of the goodness of her heart because he did not have a place to stay and was homeless. The husband stopped paying maintenance. The wife filed a petition for rule. The defense was cohabitation. The trial court found that it existed because she was using the maintenance to support the former brother-in-law. The appellate court initially affirmed the trial court, but vacated its ruling on the wife’s request for rehearing.
The court stated that when the cohabitation factors, as defined by case law, are examined, there is no de facto husband and wife relationship
The cases pose significant problems for the recipient spouse who is attempting to get on with her life in another relationship or who takes in a roommate to help pay her expenses. In doing either, she seriously risks her continued receipt of maintenance. To prevent the payor from unilaterally terminating the payments as occurred in Thornton and Michaelson, have the payment made by a notice to withhold. That way the payments can only stop with a court order. Obviously, if you represent the payor, you want the reverse.
The cases appear to conclude that there is a policy toward terminating maintenance for cohabitation, which is getting easier to prove. The path from Sappington through to Susan and Thornton all seem to favor the payor. Close cases appear to be decided in favor of termination. The trial court is very seldom reversed.
So, what is cohabitation? The legislature has not changed the definition at all. The courts have. The answer is that cohabitation is whatever living and financial arrangement the trial court says it is. It now appears that almost any dating or social relationship of the recipient can be considered cohabitation and could result in a termination of the maintenance.