Cohabitation + Spousal Support? Not in Illinois

 Posted on April 17,2014 in Family Law

With nearly 50 percent of marriages ending in divorce, the concept of spousal support is commonplace in today’s society. This is equitable relief for those spouses who may not have contributed much financially, but certainly contributed by supporting the working spouse, whether that means raising children or keeping up with regular household duties.

While spousal support was created so that one spouse can maintain their same quality of life, allow for rehabilitation and educational expenses, or simply allow one spouse to get back on their feet after divorce, the reasons for spousal support are just and fair. Generally, these individuals find new relationships and move on, eventually getting re-married to new people, at which time spousal support, unless otherwise agreed to by the giving party, ceases under Illinois law.

 Issues with Spousal Support

Issues arise however, when the ex-spouse who is receiving alimony cohabitates with their new partner. Under §750 ILCS 5/520(c), the “obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident,…conjugal basis,” absent an agreement stating otherwise. These issues creep up due to the fact that oftentimes the ex-spouse does not want the spousal support payments to stop, and instead lies about their living situation in hopes to keep that money coming in.

 What is Cohabitation?

Illinois courts have struggled with the idea of cohabitation and spousal support, having a hard time determining when one is actually cohabitating under the statute. Generally, courts look to several different factors to determine whether or not one is cohabitating with another. Such factors include: whether or not the couple shares meals, bank accounts, household chores, and credit accounts; if they exchange holiday and birthday gifts, and spend holidays and birthdays together; and, if they vacation together and maintain a sexual relationship.

In looking at such factors, it is obvious that there is no clear black letter rule that definitely states when one person is “legally” cohabitating with another. Each case brought to the court must look to each of the factors mentioned and determine from the facts and evidence whether or not the ex-spouse is still entitled to the support payments they have received since divorce.

Clearly, the idea of one ex-spouse paying another while the other is living with a new partner defies the very nature of spousal support. The reason being that, if the ex is cohabitating with another, the new partner should be capable of supporting themselves and the ex without the help of the support itself. As mentioned previously, spousal support was not created as a permanent means of income for the ex, but as a way to help them divide themselves from the partnership and become an individual again, a notion very important in those situations where one partner has spent the majority of the relationship as a stay-at-home mom or dad.

 Technology May Play a Role

As technology develops, however, determining whether or not two people actually cohabitate together will be come easier. Last year, The Huffington Post published an article suggesting that cell phone data could be used as evidence to prove cohabitation, and therefore terminate spousal support for the paying spouse.

 Contact a DuPage County Attorney

Regardless of the situation, the idea of supporting someone to whom you were never married does not support the traditional canons of equity and justice for the partner who is paying. If you think that your ex-spouse is cohabitating with a new partner and you are paying spousal support, the divorce attorneys at Mevorah & Giglio Law Offices are well equipped to get you the answers you are looking for.