The obligation to pay maintenance, formerly known as alimony, to one’s former spouse can be a tough pill to swallow. Unlike property division, which is final and cannot be modified upon entry of a Judgment for Dissolution of Marriage, the monetary amount and duration of maintenance payments are presumed to be modifiable unless the divorce decree explicitly states otherwise. The practical effect of this is that ties aren’t severed; one party remains obligated to the other oftentimes for longer than he or she prefers.

Spousal support, however, can be terminated. The circumstances which give rise to the modification of spousal support will vary from case to case, but a court finding that the recipient party is cohabitating with another individual on a continuing, conjugal basis, for example, may be just the ticket.

Proving cohabitation can be time-consuming and cost-prohibitive.  Similar to other issues in family law cases, cohabitation is very fact-dependent. Courts will consider the length of the relationship, the amount of time the couple spent together, a couple’s habits as it relates to living in each other’s homes, spending holidays and taking vacations together, holding themselves out as a couple and the interrelation of personal and financial affairs. Importantly, the recent opinion of In re the Marriage of Miller, 2024 IL App (3d) 230098 (2024), is a surprising departure from prior decisions that gave significant weight to a purported couple’s combining of finances. In Miller, the Court found that a de facto marriage did exist despite the fact that the ex-wife and her then-partner did not commingle finances. When considering all of the factors in play, the Court determined that the characteristics of the couple’s relationship and their behavior were a much more compelling and complete indicator of their relationship status. What does this all mean? Just because you do not share a bank account with your partner does not mean that you are not cohabitating with them.

When deciding whether to seek to terminate your former spouse’s right to maintenance, it is important to know all of the factors that could persuade a Court to agree that spousal support is no longer appropriate in your case. It is always best to seek the advice of competent counsel who can guide you through this complicated and nuanced area of family law.

Kathryn H. Mickelson, Equity Partner
For more on Ms. Mickelson, please visit: www.beermannlaw.com/team/kathryn-homburger-mickelson.