Is Permanent Maintenance Really Permanent?

illinois alimony attorney"I was married for 25 years until my husband hooked up with the younger woman and divorced me. I was granted permanent maintenance [alimony] , now he is trying to terminate that because I have been living with a boyfriend. Can he still be in such control of my life?"

"Alimony" what is now called Illinois spousal maintenance can be granted to a divorced spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, for a fixed or indefinite periods of time, after consideration of all relevant factors (750 I LCS 5/510). This grant of authority gives an Illinois divorce judge broad power to grant "rehabilitative maintenance," or "permanent maintenance."

Rehabilitative Maintenance

Rehabilitative maintenance in Illinois is typically entered for a number of months or some number of years. The purpose of rehabilitative maintenance is to provide monthly support to the nonworking spouse to allow that person to seek education or retraining to obtain a job and become self-sufficient. Sometimes the length of time of rehabilitative maintenance can be extended by the nonworking spouse for an additional period of time, if that person has been unable to become employed. The "rehabilitation" here is the opportunity for that spouse to seek additional training or employment that will make that spouse financially independent.

Permanent Maintenance

While in the phrase "permanent maintenance" implies that the maintenance is permanent in time when in fact it may not be so permanent.*

First, permanent maintenance continues until either spouse dies. After the death of the paying spouse permanent maintenance ends. Second, permanent maintenance ends upon the receiving spouse's remarriage. So regardless of the length of time you have been married to your husband, say 25 or even 50+ years, if you're receiving permanent maintenance, and remarry, your permanent maintenance is over.

Third, permanent maintenance terminates if you don't get married to your boyfriend but live with him on a "resident, continuing, conjugal basis." Although that phrase is something of a mouthful, it means you act like "husband and wife" with your boyfriend. Do you have a shared payment of expenses with your boyfriend or merely sharing of a residence. The more "marriage like" your relationship with your boyfriend is the more likely your permanent maintenance will terminate. Unfortunately for you even a short period of living with your boyfriend even before your divorce from your long term husband, will be enough for him to claim that you are cohabiting and should lose your right permanent maintenance [750 ILCS 5/510(c)(3)].

Both parties to a long-term marriage upon divorce may be frustrated by the rules of Permanent Maintenance. The spouse who pays permanent maintenance, usually the husband, is frustrated because he feels as though he is paying for his ex-wife's boyfriend as well as his ex-wife. The receiving spouse to permanent maintenance likewise feels like the injured party since her former husband is dictating to her in effect how she must live even though he has taken up with another woman.

By the way, the person who seeks a termination of permanent maintenance based upon cohabitation has the burden of proof. Each case is different and therefore it is hard to define exactly what set of circumstances a court will use to determine that you are cohabiting on a "resident, continuing, conjugal, basis."

The factors that Illinois divorce judges use to determine whether you and your boyfriend live on a "resident, continuing, conjugal basis" include: (1) length of the relationship; (2) amount of time the couple spends together; (3) the nature of the activities the couple engaged in; (4) the interrelationship of the couple’s personal affairs; (5) whether the couple vacationed together; and (6) whether the couple spent holidays together.

In addition, Illinois law varies in the various Appellate Court districts throughout Illinois as to what constitutes grounds to terminate permanent maintenance based upon cohabitation. Your best bet is to find an experienced divorce lawyer, such as one of our lawyers at Martoccio and Martoccio who can guide you through this somewhat tangled web of what is and what is not cohabitation.

*Permanent maintenance is typically granted in long-term marriages or where the nonworking spouse has difficulty maintaining employment due to a age, disability or a health problem. Sometimes permanent maintenance is awarded where the future earning ability of one spouse greatly exceeds that of another or based upon the standard of living the parties had throughout their marriage terminating events of maintenance in Illinois.

In fact, an Illinois divorce judge can make a “permanent” award of maintenance but make the events the terminate that maintenance differ from those set forth in the statute. For example: “Wife shall receive permanent maintenance until the former husband is eligible for Social Security or a retirement pension so that when either of those events occurs maintenance till terminate," or agree to override the cohabitation provision. In the meantime, perhaps the Illinois legislature will work to bring clarity to this often murky area of the practice.

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