Cohabitation and Spousal Support

cohabitation spousal supportMy ex-wife just moved into her new partner’s house. Do I still have to pay spousal support payments?

Divorce rates in the United States have increased two-fold since 1970, with nearly 50.6 percent of all marriages resulting in divorce. Generally, courts look to the contribution of both parties to determine the proper equitable relief required to make the two parties to the divorce whole. Such contributions include: support of the working spouse, the raising of children, maintaining the household, and completing a degree. In some instances the court awards spousal support payments to that spouse who played more of a support role in the relationship, in order to help that spouse get back on their feet.

The Basics of Spousal Support

 Spousal support was originally created to help each spouse maintain their same quality of life that they enjoyed during the relationship, allowing the spouse to rehabilitate themselves through education or the purchase or lease of a new home. On most occasions, spousal support is not a permanent expense for either party, and under Illinois law §750 ILCS 5/510(c), spousal support ceases - by operation of law and absent a separate agreement - when the party receiving the spousal support cohabitates with a new partner.

 In theory, the law operates simply, however problems arise when the ex-spouse who is receiving the support begins to cohabitate when their new partner. Under §750 ILCS 5/510(c), the “obligation to pay future maintenance is terminated…if the party receiving maintenance cohabits with another person on a resident….conjugal basis.” Oftentimes, the partner receiving the support is unwilling to terminate the support in hopes that their ex-spouse continues to send support payments, so they are untruthful about their living arrangements. Such problems can occur when the paying partner is unaware of the statutory restrictions of spousal support payments.

 The issue of spousal support has crept up in Illinois courts several times, and each time the court has struggled with the idea of cohabitation and spousal support, with the question of how to determine when one is cohabitating with another under the statute. In re Marriage of Toole, 653 N.E. 2d 456, 460 (1995), the court concluded that in order to determine the living arrangement of one who is cohabitating with their partner, the court should look to several factors to make the determination. These factors include: whether or not the couple shares meals, bank accounts, household chores and credit accounts; or if they exchange holiday or birthday gifts, and spend those holidays and birthdays together. In addition, the court looks to see if the couple vacations together and maintains a sexual relationship.

 In looking at these factors, it is clear that there is no black letter rule that definitely states when a person is legally cohabiting with another. The court must look at each claim on a case-by-case basis to make that determination, and decide whether or not the supported spouse is still entitled to the support payments they have received since the divorce.

 This statute, and the case law that interprets it, attempts to put to rest the problems that occur when one spouse is unfairly paying the other while the other is living with their new partner. Clearly, it is not fair to have one spouse cohabiting with another partner, while the ex-spouse is still paying support payments on their behalf, as the new partner should be capable of supporting themselves and the supported spouse without the help of the support payments. As previously mentioned, spousal support was not created as a permanent source of income for the ex-spouse; it was created so that each partner to the marriage has an opportunity to become their own person and create their own new life, separate from the marriage.

Contact an Illinois Family Law Attorney

Regardless of the situation, the idea of supporting a person to whom you were never married does not support the traditional canons of marriage or equitable distribution for the partner who is required to pay. If you think your ex-spouse is cohabiting with a new partner, and you are still paying spousal support, the divorce attorneys at Martoccio & Martoccio can help you determine whether or not you are still required to pay under Illinois law.

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