A table with some explanatory material for cases By Gary L. Schlesinger, Libertyville
1. Statutory authority, 750 ILCS 5/510(c) provides “Unless otherwise agreed by the parties in a written agreement set forth in the Judgment or otherwise approved by the court, the obligatory future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.”
The applicable cases are found at notes 294-299 of the annotations to the statute. All of the cases are in the attached table. There will thus be no citations in the body of this outline, only case names, unless there is a quotation, and then there will be a citation to the quotation.
2. As Bill Cosby would have said, “Right. What’s a cohabit?”
a. The supreme court answered the question in 1985 in Sappington. The issue was could there be a “conjugal relation” between a woman and an impotent male. The court said there could be and found cohabitation. This is the first case that began gutting the statute. Now, the need for a sexual relationship.
b. Some of the earlier cases were decided on the basis of whether or not the relationship was continuing. The early cases decided that it was not a continuing relationship if it ended when the petition was filed. The Leming court held there was a temporary cohabitation of several months during which the ex-wife and the boyfriend were engaged to be married but the engagement ended when she moved out of his house and was thus not a reason to end the maintenance. The Second District in toole said that a relationship that ended terminated the right to future maintenance and the right could not be reestablished when the maintenance ended.
c. The third item in the test is “resident.” The early cases said that the living arrangement must be full time and uninterrupted. The Fourth District in Herrin dealt the deathblow to that concept. The Herrin case involved a woman who had her boyfriend spend the night when her children were at their father’s house for his visitation weekends. The Fourth District said that was enough residing together to constitute cohabitation.
d. So the answer for Bill Cosby and the legislature is that now that the courts are done the term, cohabitation is neither continuous, conjugal, nor resident.
3. There must be some financial intertwining. The purpose of this section of the statute is to relieve the ex-spouse of having to pay support because the recipient no longer needs it. That is shown by proving that the cohabiting partner is helping support the ex-spouse financially. Shared household expenses, credit cards, purchasing items together are all indicia of no financial need by the ex-spouse. Another way to show the financial intertwining is if the ex-spouse is supporting the cohabiting partner. The courts have held that this shows sufficient resources by the ex-spouse that support is no longer needed.
4. The test on appeal is whether the trial court abused its discretion and whether the decision is against the manifest weight of the evidence. With this stringent standard, trial court decision is given great deference and the possibility of reversing a trial court decision is not great.
5. The public policy for this provision is that under the prior statute and case law, there we several cases that held that only death or remarriage terminated maintenance, not living together without a marriage ceremony. The legislature added this section to the IMDMA in 1977 to prohibit the inequity of having former spouses support their former spouses who lived with another person as if married, but did not get married so as to avoid having the alimony end. The IMDMA changed the name of the payment (i.e. maintenance) that specifically provided for its ending in those situations in which there was cohabitation.
6. Be careful in drafting your documents. If you list termination events in the document, Marital Settlement Agreement or Judgment for Dissolution of Marriage, and do not list cohabitation as one, then the parties are not bound by the statute and cohabitation is not a terminating event.
7. Some brief comments on some individual case:
a. Sappington. Perhaps the fact that the husband was a judge had something to do with decision. Perhaps it is a judicial acknowledgement of the movie, “Coming Home,” with Voight and Jane Fonda. Maybe the burden shifts from the payor to the recipient in the middle of the trial: “We believe that when two people live together, like the defendant and Montgomery, it is the husband-and-wife like relationship which bares the rational relationship to the need for support, not the absence or presence of sexual intercourse. Therefor an ex-spouse paying maintenance has demonstrated that a husband-and-wife like relationship does exist, it should be incumbent upon the maintenance recipient to demonstrate that the relationship in which he or she is engaged is not the type of relationship which was intended by the legislature to justify the termination of the obligation to pay maintenance.”
b. Schoenhard. “Whether the plaintiff was a “resident” of the man’s household, and whether she cohabited with him on a ‘continuing conjugal basis’ are factual determination.”
c. Stanley. Once cohabitation is found, the termination is to be retroactive to the date of notice of the petition.
d. Kessler. The court cannot terminate maintenance based on cohabitation for any period prior to the filing of the petition
f. Herrin. This is a super case because of the facts!! The ex-wife and the boyfriends saw each other daily for over two years, took vacations together, spent most evenings together, engaged in sexual relations, spent holidays together. The boyfriend ate most of his meals at her house and spent the night at her house on alternate weekends when the children were at Dad’s. The ex-wife and the boyfriend had discussed marriage but decided against it for financial reasons. There was considerable financial intertwining. The wife argued that all of this did not lessen her need for support. This court cited Frasco with approval for the proposition that the demonstrated need for support cannot be controlling and itself does not defeat a petition to terminate maintenance when, as in this case, all the other factors demonstrate a residential continuing conjugal relationship exists.
e. Rosche. The agreement said that the maintenance would terminate on remarriage. It did not say that it would only terminate on remarriage. So, the court could terminate it on cohabitation, but there was not sufficient evidence to establish cohabitation.
|Sappington||106 III..2d 456||4-19-85||Supreme||Rev||Yes|
|478 N.E.2d 376|
|Bramson||83 III.App.3d 657||4-21-80||First||Rev||No|
404 N.E.2d 569 39 III.Dec.85
|McGowan||84 III.App.3d 609||5-9-80||First||Aff||No|
|405 N.E.2d 1156|
|Kessler||110 III.App.3d 61||10-22-82||First||Aff||No|
|441 N.E.2d 1221|
|Shoenhard||74 III.App.3d 296||7-18-79||Second||Aff||No|
|392 N.E.2d 764|
|Antonich||148 III.App.3d 575||10-20-86||Second||Aff||No|
|499 N.E.2d 654|
|Arvin||184 III.App.3d 644||6-16-89||Second||Aff||No|
|540 N.E.2d 919|
|Curredonna||197 III.App.3d 155||4-25-90||Second||Aff||No|
|553 N.E.2d 1161|
|Toole||273 III.App.3d 607||7-27-95||Second||Rev||Yes|
|653 N.E.2d 456|
|Ihle||92 III.App.3d 893||1-26-81||Third||Aff||No prior s|
|416 N.E.2d 366|
|Olson||98 III.App.3d 316||7-23-81||Third||Aff||No|
|424 N.E.2d 386|
|53 III.Dec. 751|
|Cohenour||101 III.App.3d 362||11-21-81||Third||Aff||No|
|428 N.E.2d 195|
|Clark||111 III.App.3d 960||1-11-83||Third||Aff||No|
|444 N.E.2d 1369|
|Roofe||122 III.App.3d 56||2-16-84||Third||Aff||Yes|
|460 N.E.2d 784|
|Stanley||133 III.App.3d 963||6-13-85||Fourth||Aff||Yes|
|479 N.E.2d 1152|
|Tucker||148 III.App.3d 1097||10-30-86||Fourth||Aff||Did not m|
|500 N.E.2d 578|
|Johnson||215 III.App.3d 174||6-18-91||Fourth||Rev||No|
|574 N.E.2d 855|
|Klein||231 III.App.3d 901||6-29-92||Fourth||Rev||Yes|
|596 N.E.2d 1214|
|Lambdin||245 III.App.3d 797||5-27-93||Fourth||Aff||No|
|613 N.E.2d 1381|
|Frasco||265 III.App.3d 171||2-14-94||Fourth||Rev||Yes|
|638 N.E.2d 655|
|Herrin||262 III.App.3d 573||5-20-94||Fourth||Aff||Yes|
|634 N.E.2d 1168|
|Halford||70 III.App.3d 609||4-17-79||Fifth||Aff||Yes|
|388 N.E.2d 1131 27 III.Dec.168|
|Reeder||145 III.App.3d 1013|
|495 N.E.2d 1383|
|Rosche||163 III.App.3d 308|
|516 N.E.2d 1001|
|Giles||197 III.App.3d 421|
|Did not m|
|554 N.E.2d 714|
|Nolen||200 III.App.3d 1072|
|558 N.E.2d 781|
|Leming||227 III.App.3d 154|
|590 N.E.2d 1027|