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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."

NAME

CITATION

DATE

DISTRICT

AFF/RE

COHABIT

Sappington

106 III..2d 456

4-19-85

Supreme

Rev

Yes

 

478 N.E.2d 376

       
 

88 III.Dec.61

       

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

       
 

40 III.Dec.64

       

Kessler

110 III.App.3d 61

10-22-82

First

Aff

No

 

441 N.E.2d 1221

       
 

65 III.Dec.707

       

Shoenhard

74 III.App.3d 296

7-18-79

Second

Aff

No

 

392 N.E.2d 764

       
 

30 III.Dec.109

       

Antonich

148 III.App.3d 575

10-20-86

Second

Aff

No

 

499 N.E.2d 654

       
 

102 III.Dec.97

       

Arvin

184 III.App.3d 644

6-16-89

Second

Aff

No

 

540 N.E.2d 919

       
 

133 III.Dec.53

       

Curredonna

197 III.App.3d 155

4-25-90

Second

Aff

No

 

553 N.E.2d 1161

       
 

143 III.Dec.175

       

Toole

273 III.App.3d 607

7-27-95

Second

Rev

Yes

 

653 N.E.2d 456

       
 

210 III.Dec.551

       

Ihle

92 III.App.3d 893

1-26-81

Third

Aff

No prior s

 

416 N.E.2d 366

       
 

48 III.Dec.335

       

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

       
 

56 III.Dec.876

       

Clark

111 III.App.3d 960

1-11-83

Third

Aff

No

 

444 N.E.2d 1369

       
 

67 III.Dec.686

       

Roofe

122 III.App.3d 56

2-16-84

Third

Aff

Yes

 

460 N.E.2d 784

       
 

77 III.Dec.480

       

Stanley

133 III.App.3d 963

6-13-85

Fourth

Aff

Yes

 

479 N.E.2d 1152

       
 

89 III.Dec.146

       

Tucker

148 III.App.3d 1097

10-30-86

Fourth

Aff

Did not m

 

500 N.E.2d 578

       
 

102 III.Dec.685

       

Johnson

215 III.App.3d 174

6-18-91

Fourth

Rev

No

 

574 N.E.2d 855

       
 

158 III.Dec.742

       

Klein

231 III.App.3d 901

6-29-92

Fourth

Rev

Yes

 

596 N.E.2d 1214

       
 

173 III.Dec.335

       

Lambdin

245 III.App.3d 797

5-27-93

Fourth

Aff

No

 

613 N.E.2d 1381

       
 

184 III.Dec.789

       

Frasco

265 III.App.3d 171

2-14-94

Fourth

Rev

Yes

 

638 N.E.2d 655

       
 

202 III.Dec.787

       

Herrin

262 III.App.3d 573

5-20-94

Fourth

Aff

Yes

 

634 N.E.2d 1168

       
 

199 III.Dec.814

       

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

7-29-86

Fifth

Aff

No

 

495 N.E.2d 1383

       
 

99 III.Dec.648

       

Rosche

163 III.App.3d 308

12-4-87

Fifth

Aff

No

 

516 N.E.2d 1001

       
 

114 III.Dec.846

       

Giles

197 III.App.3d 421

4-26-90

Fifth

Aff

Did not m

 

554 N.E.2d 714

       
 

143 III.Dec.779

       

Nolen

200 III.App.3d 1072

8-30-90

Fifth

Aff

No

 

558 N.E.2d 781

       
 

146 III.Dec.818

       

Leming

227 III.App.3d 154

4-13-92

Fifth

Aff

No

 

590 N.E.2d 1027

       
 

169 III.Dec.108

       

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.


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