Cohabitation

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 partie written agreement set forth in the Judgment or otherwise approved by the court, the obligat pay future maintenance is terminated...if the party receiving maintenance cohabits with ano 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 are in the attached table. There will thus be no citations in the body of this outline, only case 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 cou be a "conjugal relation" between a woman and an impotent male. The court said ther 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 relationsh "continuing." The early cases decided that it was not a continuing relationship if it end the petition was filed. Clark, The Leming court held that a "temporary cohabitation" o months during which the ex-wife and the boyfriend were engaged to be married but t engagement ended and she moved out of his house was not a reason to end the maintenance. The Second District, in Toole said that a relationship that ended termin right to future maintenance and the right could not be reestablished when the relation ended.

     c. The third item in the test is "resident." The early cases said that the living arrangeme be full time and uninterrupted. The Fourth District in Herrin dealt the deathblow to tha concept. The Herrin case involved a woman who had her boyfriend spend the night w children were at their father's house for his visitation weekends. The Fourth District s 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 i relieve the ex-spouse of having to pay support because the recipient no longer needs it. Th shown by proving that the cohabiting partner is helping support the ex-spouse financially. S household expenses, credit cards, purchasing items together are all indicia of no financial n the ex-spouse. Another way to show the financial intertwining is if the ex-spouse is supporti cohabiting partner. The courts have held that this shows sufficient resources by the ex-spou that support is no longer needed.

4. The test on appeal is whether the trial court abused its discretion and whether the decis against the manifest weight of the evidence. With this stringent standard, the trial court decision 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 tog without a marriage ceremony. The legislature added this section to the IMDMA in 1977 to p the inequity of having former spouses support their former spouses who lived with another p if married, but did not get married so as to avoid having the alimony end. The IMDMA chang name of the payment (i.e. maintenance) and specifically provided for its ending in those situ See Bramson, 39 III.Dec. 88 and Antonich, 102 III.Dec. 99.

6. Be careful in drafting your documents. If you list termination events in the document (i Marital Settlement Agreement) and do not list cohabitation as one, then the parties are not by the statute and cohabitation is not a terminating event. Tucker and Giles and Arvin. Rosc contrary.

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," wit Voight and Jane Fonda. Maybe the burden shifts from the payer to the recipient in th 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 bears the rational rela 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 rela which was intended by the legislature to justify the termination of the obligation to pa maintenance."

     b. Schoenhard. "Whether the plaintiff was a "resident" of the man's household, and whe cohabited with him on a 'continuing conjugal basis' are factual determination." 30 III.D

     c. Stanley. Once cohabitation is found, the termination is to be retroactive to the date o of the petition to terminate.

     d. Kessler. Court cannot terminate maintenance based on cohabitation for any time per to the filing of the petition.

     e. Rosche. The agreement said that the maintenance would terminate on remarriage, b 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.

     f. Herrin. This is a super case because of the facts!! The ex-wife and the boyfriend saw other daily for 2 Y2 years, took vacations together, spent most evenings together, eng sexual relations, spent holidays together. The boyfriend ate most of his meals at her and spent the night at her house on alternate weekends when the kids were at dad's The ex-wife and the boyfriend had discussed marriage but decided against it for fina reasons. There was considerable financial intertwining. The wife argued that all of th lessen her need for support. This court cited Frasco with approval for the proposition demonstrated need for support cannot be controlling and in itself does not defeat a p terminate maintenance when, as in this case, all other factors demonstrate a residen continuing, conjugal relationship exists."

404 N.E.2d 569 39 III.Dec.85

For copies of bills, amendments, veto messages and public acts, contact the ISBA Departm Legislative Affairs at 800-252-8908, Springfield, or 312-726-8775, Chicago.