Often divorce clients first questions are “should I move out? If I move out won’t I be accused of abandoning the family or relinquishing my claims to the marital home?”
In regards to children, parenting time and custody issues, moving out is a strategic decision that must be handled carefully. Especially with the disparities between Chicago school districts, where each parent lives is often crucial in determining the final parenting plan. In regards to financial issues, however, moving out during the divorce really does not matter much.
My advice to my clients is, “focus on your physical, mental, and emotional health.” Usually that involves moving away from someone who you are divorcing. If it’s between a down payment on an apartment and a retainer for a lawyer, put the down payment on the apartment.”
All the property will be divided equitably and usually by agreement no matter who lives where. Issues such as temporary child support and maintenance can be entered immediately and provide a groundwork for final settlement.
Many people do not move out, though. They live with their spouse during the duration of the divorce as roommates. Typically, parties in a divorce no longer contribute to joint accounts so both parties use their own money to pay their own expenses. This creates the challenge are challenge of living with a family’s expenses while being financially independent.
This is usually resolved by filing a motion for contribution to household expenses. This very broad motion asks the court to order the parties to contribute to the household’s expenses until the assets and responsibilities are permanently divided. This is usually allocated on a proportional basis. There is no specific statute as a basis for this extremely common motion so the results, in my experience, vary greatly.
Additionally, the lesser earning spouse can ask for maintenance while still living in the same household as the greater earning spouse.
While it may seem odd to award maintenance to someone while they’re cohabitating with their spouse, it is allowable per In Re Marriage of Juiris, 2018 IL App (1st) 170545.
Cohabitation is a bar to maintenance only if the spouse is living with another person.
Section 510(c) states in relevant part: “Unless otherwise agreed by the parties in a written agreement set forth in the judgment or other approved ty the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing basis. A payor’s obligation to pay maintenance or unallocated maintenance terminates by operation of law on the date the recipient remarries or the date the court finds cohabitation began.” 750 ILCS 5/510(c)
Therefore, you can live with your spouse during the divorce and ask that he or she contribute to expenses and provide you with some “walking around money” via maintenance.
Be advised of two caveats to receiving maintenance before your divorce:
• The courts have typically held that your maintenance period starts when you begin receiving maintenance not when you are divorced. The sooner you get maintenance, the sooner it ends. For short marriages less than 5 years old where maintenance is only 20% of the marriage, this could mean that you use up all your maintenance and the leverage that goes with it before you’re even divorced.
• There’s no tax deductibility to anyone if you’re paying or receiving maintenance while you still live with your spouse. 26 U.S.C Section 71(b)(1)(C) requires that the payee spouse and the payor spouse not be members of the same household when the payment was made.
If you’re not able to live together with your spouse while you’re getting divorced you need to know that living separately has one big financial risk: The party who remained in the marital home can ask that you contribute to the mortgage or rent even if you don’t live there. As mentioned above, a motion for contribution to marital expenses can be expected while the divorce is in process and the two parties are living separately. More practically, the party that moved out of the marital home is probably on the mortgage or lease and therefore has to ensure that the mortgage or lease is still being paid in order to preserve their credit. Most couples come to a casual agreement regarding the payment of the marital home’s lease or mortgage (50/50 is common). But, this casual agreement can lead the party remaining in the house to extend the divorce process to live with 50% off rent for as long as possible.
In conclusion, living with your spouse is something that is definitely going to come to an end shortly if you’re getting a divorce. The transition should happen as soon as possible. If children are involved, this means a great deal of custody and parenting time issues very quickly. If children aren’t involved, the financial benefits of living together during the divorce almost always are outweighed by the physical, mental and emotional costs.
Contact my Chicago, Illinois office to discuss how you can live with your spouse (or how you can’t) during your pending divorce.