The issue of cohabitation in Illinois divorce cases is an interesting one. Sometimes, a spouse that is receiving maintenance support engages in a relationship with a third party after the divorce. The payor spouse many times feels a bit cheated, in that a former spouse (payee) receives financial support while at the same time dating someone exclusively and sharing their home with him/her. In Mattson, a former husband felt burned that he was paying support to his ex-wife while she was engaging in a lengthy relationship with a Chicago sportscaster. The former husband hired private investigators to watch the former wife’s house. Former husband brought his case to Court.
Marriage of Mattson: 2024 IL App (3d) 230307-U
Section 510(c) of the Dissolution Act provides that, “Unless otherwise agreed by the parties ***, 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 conjugal basis.” 750 ILCS 5/510(c) (West 2022). (Emphasis added.)
The statute ensures that a receiving spouse who is de facto married is treated no differently than a receiving spouse who is de jure married. Miller, 2015 IL App (2d) 140530, ¶ 40. Prior to 2015, the appellate court districts—but not the supreme court—had utilized a nonexhaustive, six-factor test to determine whether the parties cohabitated per statute. Id. ¶ 47. The 19 factors were:
(1) the length of the relationship; (2) the amount of time spent together; (3) the nature of activities engaged in; (4) the interrelation of personal affairs (including finances); (5) whether they vacation together; and (6) whether they spend holidays together.
While that test was helpful, it drew from the circumstances that happened to be present in the case that developed it (In re Marriage of Herrin, 262 Ill. App. 3d 573, 577-78 (1994)) and was never intended to be the test to establish cohabitation. Miller, 2015 IL App (2d) 140530, ¶¶ 48-49. Key factors were missing or understated, such as whether and to what degree “the new couple exercise[d] a partnership approach to the acquisition, use, and preservation of material resources and income” as well as mutual commitment and intended permanence. To distinguish an intimate dating relationship from a de facto marriage, courts must consider not just the presence of facts informing each of the six factors but also whether those facts achieve a “gravitas akin to marital behavior.”