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Termination and Modification of Maintenance in Illinois (Before and After the Divorce)

The Gitlin Law Firm, P.C., Woodstock, Illinois © 2008
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Does maintenance terminate if a am living with someone?
What if I live with another person before a divorce for a relatively short period of time? Surely this is not enough to disqualify me from receiving maintenance?
Does maintenance automatically terminate or would I need to go to court?
Are there cases where maintenance does not terminate due to living arrangements?
Is there recent law regarding the termination or modification of maintenance?
Do you believe this legislation significantly impacts Illinois' cases in which there is a maintenance review?
Does maintenance automatically terminated when someone is living with another person or do I have to go to court to have maintenance terminate?

Q:Does maintenance terminate if a am living with someone?

A:Generally, maintenance in Illinois terminates is someone lives with another person on what is called a “resident, continuing, conjugal basis.” The terms resident and continuing appear clear enough. The term conjugal generally means “marriage like.” Illinois case law addresses the factors things which come into play in determining whether a relationship is marriage like. These factors include whether there is an economic impact due to the relationship and the degree to which the relationship is like a marriage or more of a house sharing arrangement.

Q:What if I live with another person before a divorce for a relatively short period of time? Surely this is not enough to disqualify me from receiving maintenance?

A:Wrong. Illinois case law generally holds that what is called “pre-judgment conjugal cohabitation” may disqualify a person from receiving maintenance.

Q:Does maintenance automatically terminate or would I need to go to court?

A:The safe course is to go to court and to have maintenance terminate if the spouse who is receiving maintenance is living with another person on a resident, continuing, conjugal basis. However, the person seeking to terminate maintenance would have to prove the living arrangement.

Q:Are there cases where maintenance does not terminate due to living arrangements?

A:Yes. A marital settlement agreement can provide that maintenance will terminate in the event of conjugal cohabitation. The critical issue in this regard is the manner in which a marital settlement agreement is drafted.

Q:What is Illinois law regarding the termination or modification of maintenance?

A:Since January 1, 2004, there has been detailed Illinois legislation maintenance termination or maintenance modification. This current law provides a list of standards for the court to consider in addition to the standards set forth in initially determining maintenance. These standards are:

any change in the employment status of either party and whether the change has been made in good faith;
the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
any impairment of the present and future earning capacity of either party;
the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;
the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;
the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;
the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;
the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
any other factor that the court expressly finds to be just and equitable.

Q:Do you believe this legislation significantly impacts Illinois' cases in which there is a maintenance review?

A:Yes. Before the 2004 legislation, there was very little guidance in the statute as the standards to be used in reviewing maintenance, modifying maintenance or terminating maintenance (alimony). For example, there is existing case law in Illinois which states that the court should not consider what I refer to as the pos-decree (read post-divorce) good fortune of the payor of maintenance (sometimes called the obligor). It appears that this legislation would nullify this line of cases in that it would allow the court to consider the increase or decrease in each party's income following the divorce.

Q:Does maintenance automatically terminated when someone is living with another person or do I have to go to court to have maintenance terminate?

A:This is an area where an invidual needs legal advice. Clearly, maintenance is not determined to have terminated in Illinois until the court enters an order finding that maintenance has indeed terminated due to the living arrangement (resident, continuing, conjugal cohabitation.) Again, because Illinois law is in a state of flux on this subject, receiving proper legal advice is essential.

The Gitlin Law Firm provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law Firm's practice is generally limited to McHenry County, Lake County, Kane County and Boone County, Illinois.

The Gitlin Law Firm, P.C.
Practice Limited to Family Law
663 East Calhoun Street
Woodstock, IL 60098
815/338-9401

www.gitlinlawfirm.com
Gitlin Law Firm, P.C.

Updated: January 1, 2008