In a New Relationship? What Defines Cohabitation and How Can It Affect Maintenance

Maintenance, formerly known as alimony, is often awarded to spouses who have divorced as means of financial support after the dissolution of marriage. When determining the amount of maintenance to be received and how long the spouse will receive maintenance, the Court factors in a variety of considerations (link maintenance calculation blog here) to determine such. 

After a divorce, many people may decide to eventually enter another relationship, however, many people do not realize that entering a new relationship could very well affect the maintenance that they were awarded.  Maintenance may be terminated (unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court) under Illinois law when there is a substantial change in circumstances. Per the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5, section 509, 5c) termination of maintenance will be ordered: “upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.”  

What Defines Cohabitation?

Now, what defines “cohabitation” in Illinois? Many assume that to cohabitate, two parties must live together, but in the eyes of the Court, that is not the only deciding factor.If you have entered a new relationship, termination of maintenance under the basis of cohabitation may be awarded for various other circumstances. It is often assumed that if two parties are involved in a romantic relationship, that the relationship is one that includes sexual relations, often misconstrued as the word conjugal. However, if the legislature had intended “conjugal” to be “sexual,” it could have used the word sexual, but that isn’t how the statute was written. 

In general, courts have held that the following factors are determinative of whether a relationship rises to the level of “conjugal cohabitation” including, but not limited to: 

  • The length of the relationship
  • The amount of time you spend together with your new partner including spending the night at one another’s residence on a frequent basis
  • Residing with your new partner
  • Receiving mail at the same address or having keys to the other person’s residence
  • Sharing any expenses, utilities, property, and/or bills together
  • Sharing a financial account(s)
  • The nature of the activities you engage in with your new partner including holidays, vacations, sporting events, concerts, etc. 
  • Sharing aspects of your relationship on social media including photos together, the status of the relationship, and/or activities together

What Happens If The Court Terminates Maintenance Due to Cohabitation?

If the termination of maintenance is awarded by the Court as noted in section 509, 5c of the Illinois and Dissolution of Marriage Act: “an obligor’s obligation to pay maintenance terminates by operation of law on the date the obligee remarries or the date the court finds cohabitation began. The obligor is entitled to reimbursement for all maintenance paid from that date forward.”  If the court determines that your cohabitation terminates the maintenance award, you may have to reimburse your ex-spouse for maintenance paid back to the date that the cohabitation commenced. But how does the Court determine when the cohabitation began?  Earlier in this article, we discussed some of the various factors that the Court may use to determine cohabitation, so it is very possible that your social media posts, the photos of your shared holidays/vacation/activities together, the bill of sale from purchase, or your financial records may be used as evidence to determine the start of the cohabitation.    

We’re Here to Help

If you are currently receiving maintenance and have questions about cohabitation, our team is available to speak with you about your rights and consult with you about the stipulations which may affect your maintenance during a free, no-obligation consultation. Contact us by completing the form below, by calling us at 815-600-8950, or by emailing us info@sterkfamilylaw.com to speak with our team. 

This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.

 

This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.

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