Now that the divorce rate in Illinois has been hovering around 50% for several years, many divorced individuals who are recipients of monthly alimony payments (today referred to as ‘maintenance payments’) are confronted with a difficult decision as to whether or not a new boyfriend should be permitted to move in. Under Illinois law, the general rule is that a recipient of maintenance payments from one’s ex-spouse terminates upon the death of either party, the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.
How have Illinois courts interpreted the phrase, “cohabits with another person on a resident, continuing conjugal basis?” The following fact situation played out in an Illinois courtroom on March 23, 2004. After twenty-nine years of marriage, husband and wife divorced on August 16, 2001. The husband was ordered to pay four years of reviewable maintenance, which meant that four years later, the wife could petition the court again and request more maintenance. About two years after the divorce, the wife found a new boyfriend with whom she began an exclusive dating relationship which included sexual relations. The wife’s new boyfriend slept over at her house between two to five times each week. The boyfriend would occasionally eat meals at his girlfriend’s house, cut the lawn, rake the leaves, take out the garbage, and shovel the walk after snowstorms. In addition, the former wife would occasionally do her new boyfriend’s laundry.
After observing his ex-wife’s relationship with her new boyfriend, the ex-husband filed a petition to terminate his obligation to pay maintenance. By the time of the hearing on March 23, 2004, ex-wife and boyfriend had been dating for approximately nine months. At the time of the hearing, the former wife testified that she had no joint bank accounts or joint assets with her boyfriend, had no joint debts, owned no property together, and had taken no vacations together. At the hearing, there was also testimony that even though the parties had been dating for nine months, they had only been “sleeping together” for four months. Before you decide whether or not the former husband ultimately won his petition to terminate his obligation to pay maintenance to his former wife, consider that Illinois law requires judges to consider the following factors in determining whether parties have cohabited with another person on a resident, continuing conjugal basis:
- The length of the relationship;
- The amount of time the couple spends together;
- The nature of the activities engaged in;
- The interrelation of their personal affairs;
- Whether they vacation together; and
- Whether they spend holidays together.
This case was appealed, and decided by the Illinois Appellate Court on December 16, 2004. In this case, the Illinois Appellate Court decided that the ex-wife and new boyfriend had no economic interrelationship with one another, no joint assets, no joint debts, and therefore, the parties were not engaged in “resident, continuing conjugal relationship.” Therefore, the Illinois Appellate Court reversed the trial court decision made on March 23, 2004, and ordered the ex-husband to continue paying maintenance in accordance with the terms of his original judgment entered back on August 16, 2001. Hard to believe, but I suppose our Illinois Appellate Court is getting more liberal by the day. Nevertheless, a recipient of maintenance should think long and hard before allowing a new boyfriend to move into her residence.