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Kevin O'Flaherty

In this article, we discuss how cohabitation affects spousal maintenance in Illinois and answer the following questions:

  • How Is Cohabitation Defined Under Illinois Law?
  • What Evidence Is Needed To Prove Cohabitation Under Illinois Law?
  • How Can You Avoid Termination Of Spousal Maintenance In Illinois?

Spousal maintenance — previously termed alimony in Illinois — is a payment made from one spouse to another as part of the marital divorce agreement. The support payment may be paid as one lump sum after the divorce is finalized, but is usually paid out monthly or quarterly until the agreement is exhausted. Under Illinois law, the right to receive spousal maintenance according to your marital divorce agreement ends if the receiving ex-spouse “cohabits with another person on a resident continuing conjugal basis.” The current “definition” of cohabitation has been baked into the law based on past Illinois rulings, as the actual law contains no specific language defining cohabitation. What most divorced couples don’t know is that when spousal support is terminated due to cohabitation, it ends forever in Illinois whether the new relationship lasts or not.

alimony and cohabitation spousal maintenance

How Is Cohabitation Defined Under Illinois Law?

If we break down the sentence “cohabits with another person on a resident continuing conjugal basis,” we can get a better idea of what the courts consider cohabitation. The word “cohabits” is defined as “living together without being married”; resident is defined as “a person who lives somewhere permanently or on a long-term basis”; continuing is defined as “without a break in continuity and ongoing”; and conjugal is defined as “relating to marriage or the relationship of a married couple.”

If we take these definitions and combine them into a cohesive guideline for cohabitation we see that your spousal maintenance will terminate if you live with another person continuously as if you were a married couple. This guideline rules out those that are just living together as roommates, even though it could be argued that they are sharing expenses. The primary factor determining cohabitation and termination of spousal support appears to hinge on a continuous living arrangement under a relationship similar to a married couple. While this is certainly far from concrete, it serves as a guide for the court when considering the evidence and gives the judge something to hang her hat on when making her ruling.

Individuals seeking to terminate their spousal maintenance payments because they believe their ex-spouse is cohabitating will often need to hire a private investigator to collect the evidence necessary to prove the claim of cohabitation. This evidence should show that the lives of individuals allegedly cohabitating are intertwined in such a way as it mimics marriage. 

What Evidence Is Needed To Prove Cohabitation Under Illinois Law?

There are certain elements of a relationship that point towards marriage like cohabitation that the court will be looking for. Some of these include shared accounts, joint bills, traveling together, or celebrating holidays together. It’s not enough to show that your ex-spouse and another individual spend nights and sometimes days together, even if a majority of the time it is in the same residence. There is nothing in the law that states that divorced couples can’t seek out new relationships without immediate repercussions. 

When someone petitions for a motion to termination spousal maintenance, a hearing date will be set to speak with the judge and all evidence will be presented at that time. It’s critical to show how long the relationship has been going on and how much time your ex-spouse has been spending with the other person, but equally important is demonstrating how you know how much time they have been spending together. Other questions the judge will expect you to answer might include:

  • Do you live at a location that provides you with a consistent ability to monitor their movement and activity?
  • Did you hire someone to monitor their activity or have you seen them around town together consistently?
  • Do you have photos or video evidence of their time together?
  • Do you have evidence of combined finances and shared accounts?
  • Does mail for both individuals go to the same residence?
  • Do they spend holidays together and travel together?
  • How do they refer to each other while in public?
  • Have they changed the relationship status on their social media accounts to something reflecting an engaged and consistent marriage-like relationship?
  • Have they mentioned their intention to get engaged?

The court will look at all aspects of a spousal maintenance termination case when making a decision. Some individuals believe that they can keep a separate apartment where they receive their mail, but the court will easily see through this if the evidence suggests otherwise. They will want to know where you spend the majority of your time, where you keep most of your belongings, where you eat, care for your children, etc, etc.

How Can You Avoid Termination Of Your Spousal Maintenance?

If you want to remarry or live with another person in a supportive or romantic relationship, your spousal maintenance will most likely be terminated. However, if you’re just trying to make sure you don’t make a mistake and put your maintenance in jeopardy, follow these tips:

  • Keep your finances separate from the other person;
  • Do not share a residence;
  • Do not name the other person as a beneficiary for an account or in your estate planning;
  • You can spend your holidays together, but the court may consider this in their decision;
  • You can vacation together, but keep evidence showing you paid your own expenses;
  • Avoid pictures and posts on social media that give the impression you are cohabitating;
  • Do not purchase a car, real estate, or any other significant asset with the other person.

More and more divorcing couples are tackling the issue of spousal maintenance termination head-on in their divorce agreements. Some include provisions that allow the ex-spouse to continue to receive spousal maintenance, albeit at a lower amount, and if regular income statements are provided to show the new couples combined income is below a certain level. If you and your spouse can work out how to handle cohabitation and remarriage in your divorce agreement it goes a long way to avoid costly and stressful litigation after the divorce is finalized.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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