People get divorced but the marriage is rarely their last relationship. I will joke with my clients that “love is waiting for you” during the darkest hours of the divorce process. A year later, I’ll see them on the street with their new boyfriend or girlfriend.
Getting into a new relationship either during or after a divorce is healthy for everyone involved but it can affect issues of support and parenting time after an Illinois divorce.
While most people acknowledge that mere dating is inevitable, parties to a divorce can get uncomfortable when their ex begins living with someone else.
Under Illinois divorce law, “cohabitation” with another person does trigger several issues during and after an Illinois divorce.
Cohabitation And Marital Assets In An Illinois Divorce
If you or your spouse are dating someone while the divorce process is occurring, that is largely a non-issue in regards to distributing marital assets.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
In fact, cohabitation during a divorce will probably mean less marital assets as the cohabitating spouse’s income will be spent on expenses while their paramour’s income will purchase assets and gifts for the spouse.
Any expenses from the spouse spent on their new paramour can be clawed back, in part, via a dissipation claim.
“Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.
If your spouse is still, technically, married and maintaining a second household with someone else, your spouse’s income (which is still marital) is being used for a purpose unrelated to the marriage.
After a finding of dissipation, an Illinois divorce court will then award the non-dissipating spouse half of the dissipated money under the theory that if the money had not beeen spent inappropriately, the money would still be there to divide.
Cohabitation And Child Support In An Illinois Divorce.
Child support in Illinois is calculated based on the two incomes of the parents. The two incomes are totaled and plugged into a chart made by the Illinois Department Healthcare and Family Services. The chart then estimates how much it costs to raise a child monthly. The parent who has the children the majority of the time can expect to receive the calculated child support amount from the parent who does not have the majority of the time.
If both parents have the child at least 40% of the time, a significant reduction in child support will be ordered (again via formula).
If either parent is paying for child care or health insurance for the minor children in question, that parent will get an additional credit to be paid by the other parent via child support.
If an Illinois divorce court is using this formula, called “the guidelines”, the court will not consider whether either parent is living with someone else. An Illinois divorce or parentage court is not required to use this formula, however.
An Illinois divorce court can “[make] a finding that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors including, but not limited to…
the financial resources and needs of the parents” 750 ILCS 5/505(a)(2)
The statute could allow the court to consider a new spouse or boyfriend’s income in calculating child support if the guidelines support amounts are deemed not to be not followed.
The court can “[consider a party’s] current spouse’s financial resources because they were commingled with [the current spouse].” In re Marriage of Baptist, 598 NE 2d 278 – Ill: Appellate Court, 4th Dist. 1992
If the finances of the cohabitating parties are mixed up enough, the court can consider that to be an available financial resource for the purposes of child support.
Cohabitation, however, also creates new needs that the court must consider when determining non-guidelines child support in Illinois.
“The financial status of a current spouse may not be considered to ascertain the ability of a party to fulfill a child support obligation, but it may be equitably considered to determine whether the payment of child support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs.” In re Marriage of Keown, 587 NE 2d 644 – Ill: Appellate Court, 4th Dist. 1992
The court even has the power to reduce child support if the cohabitating living arrangement is so bizarre or harmful as to warrant a modification in child support. Such a decision would be only in the most extreme circumstances.
”It is not appropriate for the trial court to limit child support without any evidence or argument as to the effect of the living arrangement on the children or the appropriateness of this particular response.” DEPT. OF PUBLIC AID EX REL. NALE v. Nale, 690 NE 2d 1052 – Ill: Appellate Court, 4th Dist. 1998
Cohabitation And Maintenance (Formerly Known As Alimony)
Most people are familiar with the rule that cohabitation can terminate maintenance (formerly known as alimony)
Of course, remarriage is the ultimate level of cohabitation. There is no question that the remarriage of a person receiving maintenance will result in the termination of their maintenance award.
“[T]he obligation to pay future maintenance is terminated upon…the remarriage of the party receiving maintenance” 750 ILCS 510(c)
Living with someone is also a basis for the termination of maintenance in Illinois.
[T]he obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 510(c)
The reason maintenance can be terminated in situations involving cohabitation is to prevent “the inequity created when the ex-spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not legally formalize it.” In re Marriage of Herrin, 262 Ill. App. 3d 573, 577, 634 N.E.2d 1168, 1171 (1994).
You cannot have your cake (get the support of a live-in boyfriend/girlfriend) and eat it too (continue to receive maintenance from your former spouse).
“The purpose underlying the statutory termination of maintenance when the recipient spouse cohabits with a third party[,] is to remedy the inequity created when the recipient spouse becomes involved in a husband-wife relationship but does not formalize the relationship, so that he or she can continue to receive maintenance from his or her exspouse.” In re Marriage of Sunday, 354 Ill. App. 3d 184, 189 2004).
Financial support from a cohabitant does NOT determine whether the parties are cohabitating sufficiently to terminate maintenance. It is the cohabitation itself that matters not the support.
“Although there was no financial enmeshment, we find the intertwined social and emotional aspects of their relationship weigh heavily in favor of a de facto marriage.” In re Marriage of Miller, 2024 IL App (3d) 230098
Living with someone is not as official and obvious as determining whether someone is re-married. Is sleeping overnight cohabitating? And how often? Is sharing a utility bill cohabitating? And how many accounts?
How much cohabitating is enough to terminate maintenance in Illinois?
There are several steps one must take to prove or disprove cohabitation in Illinois.
“Maintenance will be terminated based upon resident, continuing, conjugal cohabitation if the ex-spouse paying the maintenance can show that a de facto husband and wife relationship exists.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994
There, the maintenance payor must initially prove that the maintenance receiver is cohabitating. The maintenance payor is probably the least qualified person to prove their ex-spouse is cohabitating as they should be actively avoiding their ex-spouse and their current romantic life.
“Cohabitation” is defined in Black’s Law Dictionary as “[d]welling together”; “Intercourse together as husband and wife”; “Living, or abiding or residing together as man and wife.” (Black’s Law Dictionary 326 (4th ed. 1978).)
“[C]ourts have construed ‘cohabitation’ to mean a de facto husband-wife relationship.” In re Marriage of Roofe, 122 Ill. App. 3d 56, 59 (1984)
This sounds like the maintenance payor is going to need to prove that the maintenance receiver is having sex with their cohabitant…which is clearly going to be very difficult to prove.
Illinois courts have decided that the “conjugal” nature of a cohabitating relationship need not be sexual and therefore sex need not be proved “If the legislature had intended “conjugal” to be “sexual,” it could have used the word sexual, but it did not.” In re Marriage of Sappington, 478 NE 2d 376 – Ill: Supreme Court 1985
So what must be initially proved by the maintenance payor in order to establish “resident, continuing, conjugal cohabitation”?
Whatever the test for proving cohabitation, it is the burden of the party trying to prove the cohabitation sufficiently exists. “The burden is on the party seeking the termination of maintenance to prove that the ex-spouse receiving maintenance is involved in a de facto husband and wife relationship with a third party.” In re Marriage of Susan, 367 Ill. App. 3d 926, 929 (Ill. App. Ct. 2006)
When determining if the cohabitation is sufficient to terminate maintenance, the distinction is always whether this is a “dating” relationship or conjugal, cohabitating relationship. Every cohabitation case is different and must be analyzed on its own facts.
“In each of the cases where termination of maintenance is sought under [the statute], there will be a unique set of facts. No two cases in this area will be alike because no two personal relationships are alike” In re Marriage of Sappington, 478 NE 2d 376 – Ill: Supreme Court 1985
“Where the relationship has achieved a permanence sufficient for the trial court to conclude that it has become a substitute for marriage, equitable principles warrant a conclusion that the spouse has abandoned his or her rights to support from the prior marriage” In re Marriage of Herzog, 761 S.W.2d 267, 268 (Mo. Ct. App. 1988
A court can “[consider] various factors defining that relationship, such as (1) its length; (2) the amount of time petitioner and [paramour] spent together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together. The test the court should employ…is the totality of the circumstances.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994
These 6 factors seem to give clarity as to what constitutes cohabitation but other courts disagree with Herrin’s 6 factor test.
“Notably, the supreme court has not adopted the six-factor analysis in any manner, let alone adopted it as sufficient to encapsulate the totality of the circumstances in all cases” In re Marriage of Miller, 2015 IL App (2d) 140530
These matters are almost always established two ways: Via a private detective’s testimony about whose car was outside of whose house and social media posts.
Some courts have determined that this 6 factor analysis is not sufficient to establish what a finding of cohabitation really requires: a de facto marriage.
“A fair reading of Herrin [the 6 factor analysis case] leads us to the conclusion that, while helpful in most instances, the six-factor analysis was never intended to be used as the test to find a de facto marriage….In distinguishing an intimate dating relationship…from a marriage-like relationship…, we think it fair to state the following. Intimate dating relationships have companionship and exclusive intimacy, whereas marriage-like relationships, while likewise having companionship and exclusive intimacy (not necessarily sexual but such that the former spouse does not engage in a similar relationship with a third person), also have a deeper level of commitment, intended permanence, and, unless reasonably explained, financial or material partnership (which would most commonly come in the form of a shared household).” In re Marriage of Miller, 2015 IL App (2d) 140530
The Miller analysis is a different (and much more amorphous) standard than Herrin’s 6 factor analysis.
“The six-factor analysis is insufficient to distinguish an intimate dating relationship from a de facto marriage if left unaccompanied by an understanding that the facts falling into each category must achieve a gravitas akin to marital behavior.” In re Marriage of Miller, 2015 IL App (2d) 140530
The Miller analysis seeks to focus exclusively on “marital behavior.” What is marital behavior?
“Marital behavior implies intended permanence” In re Marriage of Saunders, 2024 IL App (3d) 230151
Therefore, the thorough divorce lawyer should argue both the Miller and the Herrin standards.
Once the maintenance payor has shown via a “totality of the circumstances” that a de facto husband and wife relationship exists “the burden shifts to the recipient to demonstrate that he or she is not engaged in that type of relationship.” In re Marriage of Herrin, 634 NE 2d 1168 – Ill: Appellate Court, 4th Dist. 1994
This means the maintenance receiver gets their own chance to subsequently disprove that their “cohabitation” does not rise to the level necessary to terminate maintenance.
The maintenance receiver will certainly admit to dating the person but will try to establish that it is merely dating. “As opposed to an intimate dating relationship, a de facto marriage involves a deeper commitment, permanence and partnership.” IN RE MARRIAGE OF CHURCHILL, 126 NE 3d 779 – Ill: Appellate Court, 3rd Dist. 2019
“[A]n intimate dating relationship is not a de facto marriage.” In re Marriage of Miller, 2015 IL App (2d) 140530, ¶ 51.
Again, the facts will determine the distinction between dating and a de facto analysis. The Illinois Supreme Court found that “sporadic” overnights indicated a non-resident, non-conjugal relationship. In re Marriage of Bates, 212 Ill. 2d 489, 524 (Ill. 2004)
This distinction between an intimate dating relationship and a de facto marriage is key. A party can have “sufficiently established the social and emotional aspects of a long-term, romantic relationship that involved both parties’ families. However, on balance, it [can also be] determined that the relationship lacked certain practical and economic characteristics, specifically with regard to their otherwise separate lifestyles and financial situations [thus rendering it a mere intimate dating relationship which does not terminate maintenance].” In re Marriage of Edson, 2023 IL App (1st) 230236
“[T]he body of law has shifted away from those pure statutory definitions and now focuses on whether a relationship is “husband-and-wife-like” in nature, i.e., one of a de facto marriage, based on the totality of the circumstances. [Courts should focus on] the [presence] of certain traditional components of a marital relationship, such as intended permanence and mutual commitment (speaking to the continuing and conjugal elements), a shared day-to-day existence (speaking to the conjugal and residential elements), and the shared use and maintenance of material resources (speaking to the residential element)”…[when deciding on] a petition to terminate maintenance. This establishes a reasonable compromise between the inevitable varying degrees of such relationships, because even if a relationship may have been short in duration or the couple may not live together at the time of trial, it may nonetheless still bear the hallmarks of a de facto marriage.” In re Marriage of Larsen, 2023 IL App (1st) 230212 (citations and quotations omitted)
The maintenance receiver almost always has the upper hand as they can use anything at their disposal to prove the mere intimate dating relationship whereas the maintenance payor can only use the information at their own disposal. This is clearly an imbalance of information unless scrupulous discovery is conducted by the maintenance payor.
Such scrupulous discovery may find facts that warrant a termination of maintenance.
In re Marriage of Aspan, 2021 IL App (3d) 190144, terminated maintenance after finding that the former spouse withdrew money from bank account to help pay for new partner’s home, lived in the home full-time, and kept utilities in her name.
In re Marriage of Walther, 2018 IL App (3d) 170289, ¶ 24, terminated maintenance where it was found that the former spouse had a conjugal relationship with the new partner at the time of the divorce; slept at the new partner’s residence on a daily basis from May to November 2015, moving her daughter into the home; had free access to the new partner’s house; stored and washed clothes at the new partner’s house; purchased groceries and cooked for the new partner’s family; took overnight trips with the new partner; and referred to a photograph of herself, her new partner, and their children as a “family.”
In re Marriage of Churchill, 2022 IL App (3d) 210026, ¶ 42, terminated maintenance where it was found that the former spouse used her new partner’s last name and the new couple “exchanged rings and have worn their respective rings on their left ring fingers.”
Furthermore, the maintenance receiver can argue their relationship is an intimate dating relationship that does not rise to a de facto marriage which would require termination of maintenance. “[While there may be] evidence of a relationship that is monogamous and intimate, [but there is also an] active choice by both [the maintenance receiver and the person they’re dating] to not further their relationship in numerous ways, emotionally and practically.” In re Marriage of Larsen, 2023 IL App (1st) 230212 (citations and quotations omitted)
Should cohabitation be effectively proven, the maintenance paid will be ordered returned from the date the cohabitation was initially established.
“[T]he triggering period for termination of maintenance is the time the conjugal cohabitation began and not when the petition to terminate maintenance is filed.” In re Marriage of Snow, 322 Ill. App. 3d 953, 957 (Ill. App. Ct. 2001)
A final note regarding couples who refuse to get married so that maintenance will still be paid. These folks often do “commitment ceremonies” in lieu of marriage. A commitment ceremony may, in fact, be a “remarriage” for the purposes of terminating support.
“[T]he use of the term ‘remarriage’ is intended to refer to a ceremonial marriage rather than a marital status” In re Marriage of Kolb, 425 NE 2d 1301 – Ill: Appellate Court, 1st Dist. 1981
Cohabitating And Parenting Time In Illinois
It is expected that the parties to a divorce with children will remarry. In fact, it is encouraged. In Illinois, Step-parents are even given rights to visit children under certain circumstances.
New boyfriends and girlfriends living under the same roof as one’s children will give any parent pause.
A strange (to you) adult living with your child is not an automatic trigger to reduce or modify parenting time. In Illinois, the courts only care about the effect on a child, not the parent’s behavior.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
Reducing or modifying one parent’s parenting time requires a full hearing.
“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)
So, the objecting parent would have to prove the new boyfriend or girlfriend has “seriously endangered the child’s mental, moral or physical health.” After that has been proved, the court can issue an order “[R]estricting the presence of specific persons while a parent is exercising parenting time with the child” 750 ILCS 5/603.10(a)(5)
This is such a high bar, that it can almost never be achieved beyond unimaginably horrible circumstances and not mere suspicion of the new paramour.
There is one condition where your child will not have to live with the other parent’s strange new boyfriend or girlfriend…if that person is a sex offender.
If the new paramour is a sex offender, the court will conduct an automatic hearing to determine the propriety of exposing the child to the sex offending paramour in order to determine “whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in” 750 ILCS 5/602.7(b)(15)
If your ex is cohabitating with someone and you’re curious how it will affect your alimony, child support or parenting time, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.
