Family law practitioners are often encountered by litigants seeking to terminate their obligation to pay spousal support on the grounds that their former husband or wife is residing with another person. There are a number of factors to be considered in petitioning the court for termination of spousal maintenance because of "cohabitation on a resident, continuing conjugal basis," only one factor of which is whether or not the former spouse is involved in a sexual relationship with another individual. Indeed, the case law makes it apparent that whether or not the former spouse took a vacation with another person is just as relevant in determining whether cohabitation existed on a resident, continuing conjugal basis as what they did while on the trip. It is also important to consider when the conjugal residency began, and what if anything a marital settlement agreement says with respect to that event.
In re Marriage of Sappington:
Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides:
Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by 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 conjugal basis.1
Between the enactment of the Illinois Dissolution of Marriage Act in 1977 and the 1982 revision, six appellate court decisions had interpreted the term "conjugal basis" as requiring a showing of sexual intercourse.2 In 1985, the Illinois Supreme Court for the first time dealt with the issue of what constitutes cohabitation on a resident, continuing conjugal basis sufficient to terminate spousal maintenance. In Sappington,3 the Circuit Court of Sangamon County denied Mr. Sappington’s petition to terminate maintenance payments to his former wife, which had been brought on the grounds that she was living with another man on a "resident, continuing, conjugal basis," because Mr. Sappington had failed to prove the existence of any type of sexual intercourse or sexual relationship between his former spouse and her new partner. It was proven to the satisfaction of the trial court that the former Mrs. Sappington’s new companion was impotent.
The appellate court upheld the judgment, holding that a sexual relationship is an essential element of a conjugal relationship as contemplated by Section 510(b)(now 510(c)). It was undisputed that the respondent and her companion lived together in the former marital residence of the parties. They lived in separate bedrooms but shared household utility bills and other payments. The new companion had free access to the entire house, performed maintenance jobs in and around it, and occasionally ate with the defendant. The parties vacationed together. They denied any sexual conduct toward each other and maintained that their relationship was just that of friends. 4
In discussing the meaning of the term "conjugal," the Illinois Supreme Court decided that the term did not necessarily include sexual conduct. While the court stated that the presence or absence of sexual conduct may be considered as a factor in determining whether a conjugal relationship exists, it gave equal weight to whether or not the parties shared living expenses, worked around the house together, and took vacations together. The court stated, "In effect, Montgomery (the alleged boyfriend) took the place of the plaintiff in and around the household."5 Responding to the majority’s statement, Justice Goldenhersh caustically commented in dissent that "[i]t would not be overly cynical to suggest that if, by the activities shown by the evidence, Montgomery effectively took plaintiff’s place around the household, it is not surprising that the parties were divorced."6
What really counts, according to the Sappington court, is whether or not there existed a husband and wife type relationship that took the place of the former spousal relationship which had been dissolved and from which both the need for and the duty to pay spousal maintenance arose.
Decisions after Sappington:
In post-Sappington rulings, the appellate courts have made several things clear. First, the right to receive maintenance is terminated when one of the parties resides on a continuing conjugal basis with another person, and there is no going back. Second, the sex of the other person makes no difference. Third, if maintenance termination provisions set forth in the martial settlement agreement do not include continuing conjugal residency, termination on that ground is waived, unless the maintenance is in the nature of a property settlement (formally "alimony in gross"). Finally, termination begins when the conjugal residency starts, not when a petition to terminate is filed.
In In re Marriage of Toole,7 the appellate court for the Second District followed the holding in Sappington and found that a conjugal cohabitation existed on a resident basis where the records showed that the former wife and her apparent new partner "shared meals, bank accounts, household chores, and credit accounts, as well as exchanged holiday and birthday gifts. The two also took vacations together and maintained a sexual relationship."8 In Toole, the conjugal relationship had been terminated prior to the time that the trial court granted the wife rehabilitative maintenance. Drawing an analogy to the death of one of the spouses, the appellate court held that once a party has resided on a continuing conjugal basis with another party, the right to receive maintenance is terminated and cannot be revived under any circumstance.9 The Toole court found that while the conjugal relationship may be temporary, its extinguishment of the right to receive spousal maintenance is permanent.
In the case of In re Marriage of Weisbruch,10 the appellate court addressed the interesting problem of a same-sex conjugal relationship. In that case, Carol Weisbruch lived with another woman named Sandra Diesel after her marriage to John Weisbruch had terminated in dissolution. Carol and Sandra purchased a single-family house together in joint tenancy, and they lived there together. They borrowed money from each other, cosigned loans for each other, co-owned their respective cars, shopped for food together, took vacations together, had involved each other in the other’s testamentary estate, and had manifested their desire to retire together. They denied any sexual contact. Dr. Robert Shapiro, a clinical psychologist, opined that two people of the same sex might engage in a conjugal relationship. 11 Noting that "the most important factor is whether the cohabitation affects the receiving spouse’s need for support,"12 the appellate court found that whether or not the parties were engaged in a sexual relationship had little to do with whether they were residing on a conjugal continuing basis. The court stated:
In summary, the purpose of the statute is to prevent the injustice of requiring the paying spouse to continue paying maintenance to an ex-spouse who uses the money to support someone else or is receiving support from someone else. In this context, it makes no difference to the paying spouse whether the ex-spouse’s new relationship is one that society is prepared to recognize as legitimate or can be legally consummated by marriage.13
Another line of cases deals with the effect of a written marital settlement agreement upon termination of spousal maintenance on the grounds of residency on a continuing conjugal basis. In Bramson v. Bramson,14 the Third District held in 1980 that Section 510(b) (now 510(c)) applied to terminate future maintenance if the recipient lived on a resident, continuing conjugal basis, regardless of either the agreement of the parties or the fact that the amount of alimony was fixed. Cases decided since then clearly allow future maintenance to continue if agreed upon by the parties, or if limiting factors contained in the marital settlement agreement do not specifically include termination on grounds of continuing conjugal residency.
In Ihle v. Ihle,15 the court dealt with a case in which the decree was entered under the Divorce Act, but decided under the Dissolution of Marriage Act. In that case, the husband was required to pay $44,100.00 in total alimony, payable in installments of $525.00. The payments terminated on the death or remarriage of the wife. The wife cohabited on a continuing resident conjugal basis. The court found that the payments were "alimony in gross," equivalent to a property settlement, and non-modifiable. The Ihle decision is notable for the fact that the court would not allow a termination of maintenance where there was a fixed amount to be paid in fixed installments, and considered it in the nature of a property settlement which is non-modifiable under section 510(a).16
In Arvin v. Arvin,17 the agreement provided that the husband would pay the wife $200.00 per month maintenance, terminable upon her death or remarriage. The husband attempted to terminate maintenance on the grounds that the wife resided on a continuing conjugal basis. The Second District found that since the judgment only provided for termination on grounds of death or remarriage, it limited the remedies of Mr. Arvin, and maintenance could not be terminated on grounds set forth at Section 510(c). In the case of Giles v. Giles,18 the Fifth District followed the ruling in Arvin.
However, in Rosche v. Rosche,19 the husband was required to pay the wife $400.00 per month maintenance. The husband sought modification of maintenance (along with other counts) because the wife allegedly resided with another party on a resident continuing conjugal basis. The judgment provided that it was non-modifiable "except by a further order of this court if required for future educational needs of the children after reaching majority, or except by operation of law."20 The court found that the "by operation of law" clause made the decree modifiable and maintenance terminable as to Section 510(b)(now 510(c)), but not as to 510(a) (change of circumstances).21
The moral of the story is that while silence may be golden, it is not when it comes to maintenance termination clauses in marital settlement agreements. If maintenance is terminable either because or not because of residency on a continuing conjugal basis, it should be specifically set forth, one way or the other, in the judgment.
In order to prove a resident, continuing, conjugal relationship, it must be proven that the recipient spouse is involved in a de facto husband and wife relationship.22 To determine the existence of a de facto marriage, the courts have considered the following factors:
(1) The length of the relationship; (2) the amount of time the couple spends together; (3) the nature of activities engaged in; (4) the interrelation of their personal affairs; (5) whether they vacation together; and (6) whether they spend holidays together. 23 The reviewing court will not reverse a trial court’s determination as to the existence of a de facto marriage unless that finding is contrary to the manifest weight of the evidence.24
Whether or not the court finds a resident continuing conjugal relationship depends on the facts of each case. For example, in In re Marriage of Nolen, the court denied the former husband’s petition to terminate maintenance on the grounds that his former wife had entered into a continuing conjugal cohabitation with another party where the former wife had performed cooking, cleaning, and laundry services at the home of a man whose health was failing in return for room and board. 25 The court pointed out that something more than merely living with another person of the opposite sex must be proven, and that a lesser involvement by the recipient spouse does not require termination of maintenance.26
Similarly, in In re Marriage of Frasco,27 the trial court found that the former wife and a third party were not involved in a de facto husband/wife relationship, but had "more of an economic relationship commonly entered into by roommates to share living expenses."28 The appellate court reversed, finding that the facts were indicative of a resident, continuing conjugal cohabitation conforming to the traditional model of marriage where the former wife performed most of the household tasks allotted to the role of homemaker, while the third party in question took care of the general maintenance and yard work. The parties shared bank accounts, gifts, holidays and special occasions. While there was no clear evidence that the former wife and her friend had entered into a sexual relationship, the court found that evidence existed of "shared lives" sufficient to terminate spousal maintenance. 29 Like most issues decided under the IMDMA, the question of whether a de facto husband and wife relationship exists sufficient to prove cohabitation on a resident continuing conjugal basis is the result of numerous factors and ultimately the weight given to those factors by the trial court.
The termination clock starts running when the resident continuing conjugal relationship commences, rather than when the petition to terminate maintenance is filed. In the case of In re Marriage of Gray,30 the agreement incorporated into the judgment provided that the husband was to pay the wife permanent maintenance in the amount of $16,200.00 annually, terminable upon the wife’s remarriage, the death of either party or the cohabitation of the wife. The wife filed a petition to collect past due maintenance payments, and the husband counter-petitioned to terminate maintenance all together, alleging that the wife had cohabited with another party in violation of Section 510(c) of the Act. The trial court found that the wife had cohabited on a resident continuing conjugal basis, and terminated the husband’s obligation to pay maintenance as to the date that the petition to terminate was filed. In distinguishing the requirements of Section 510(a) and Section 510(c) of the Act with respect to the filing of motions, the appellate court specifically found that the filing of a motion is not a prerequisite to the termination of spousal maintenance, if cohabitation is proven. Accordingly, the appellate court reversed the trial court’s ruling and terminated maintenance as of the day that the cohabitation began.
In In re Marriage of Snow,31 the Third District followed the ruling in Gray. In that case, the husband was ordered to pay maintenance to the wife. It was further provided in the judgment that "maintenance shall terminate after the above payments have been made or earlier upon order of court," thus leaving a door open for the termination of maintenance on grounds of cohabitation. The husband filed a petition to terminate maintenance alleging that his former wife had been engaged in a continuing conjugal relationship between August 1997 and February 1999. The wife and third party were found to have lived together for a year and a half. They socialized and engaged in dating activities. They exchanged presents, split household chores, and while their testimony was at odds as to the nature of their sexual relationship, the trial court found that one existed. The findings of the trial court were not against the manifest weight of the evidence and maintenance was terminated.32 The appellate court found that the termination date was the date on which the cohabitation began, not when the petition to terminate was filed.33
There are many factors that the courts look to in deciding whether or not to terminate maintenance on the grounds of a resident, continuing conjugal residential basis, and when all factors being considered the ultimate decision involves matters of economics and timing.
1 750 ILCS 5/510(c) (West 2003).
2 In re Support of Halford, 70 Ill. App. 3d 609 (1979); Schoenhard v. Schoenhard, 74 Ill. App. 3d 296 (1979); In re Marriage of McGowan, 84 Ill. App. 3d 609 (1980); In re Marriage of Bramson, 83 Ill. App. 3d 657 (1980); In re Marriage of Olson, 98 Ill. App. 3d 316 (1981); In re Marriage of Cohenour, 101 Ill. App. 3d 362 (1981).
3 106 Ill. 2d 456, 478 N.E. 2d 376 (1985).
4 Sappington, 106 Ill. 2d at 459-460.
5 Id. at 466.
6 Id. at 470.
7 273 Ill. App. 3d 607, 653 N.E.2d 456 (2d. Dist. 1995).
8 Toole, 273 Ill. App. 3d at 612.
9 Id. at 613.
10 304 Ill. App. 3d 99, 710 N. E. 2d 439 (2d Dist. 1999).
11 Weisbruch, 304 Ill. App. 3d at 102.
12 Id. at 104, citing Sappington, 106 Ill. 2d at 467-68.
13 Weisbruch, 304 Ill. App. 3d at 105.
14 83 Ill. App. 3d 657, 404 N.E.2d 469 (3d Dist. 1980).
15 92 Ill. App. 3d 893, 416 N.E. 2d 366 (3d Dist. 1981).
16 750 ILCS 5/510(a) (West 2002).
17 184 Ill. App. 3d 644, 540 N.E. 2d 919 (2d Dist. 1989).
18 197 Ill. App. 3d 421, 554 N.E. 2d 714 (5th Dist. 1990).
19 163 Ill. App. 3d 308 (5th Dist. 1987).
20 Id. at 310.
21 Id. at 312.
22 In re Marriage of Snow, 322 Ill. App. 3d 953, 956, 750 N.E. 2d 1268 (3d Dist. 2001), citing In re Marriage of Leming, 227 Ill. App. 3d 154, 590 N.E. 2d 1027 (3d Dist. 1992).
23 Snow, 22 Ill. App. 3d at 956, citing In re Marriage of Herrin, 262 Ill. App. 3d 573, 634 N.E. 2d 1168 (3d Dist. 1994).
24 Snow, 322 Ill. App. 3d at 956, citing In re Marriage of Jones, 285 Ill. App. 3d 8, 673 N.E. 2d 703 (3d Dist. 1996); In re Marriage of Caradonna, 197 Ill. App. 3d 155, 553 N.E. 2d 1161 (1990).
25 200 Ill. App. 3d 1072, 558 N.E. 2d 781 (5th Dist. 1990).
26 Nolen, 200 Ill. App. 3d at 1075, citing In re Marriage of Bramson, 83 Ill. App. 3d 657, 662-63, 404 N.E. 2d 469, 472-73 (1980).
27 265 Ill. App. 3d 171, 638 N.E. 2d 655 (4th Dist. 1994).
28 Frasco, 265 Ill. App. 3d at 175.
29 Id. at 176-77.
30 314 Ill. App. 3d 249, 731 N.E.2d 942 (2d Dist. 2000).
31 322 Ill. App. 3d 953, 750 N.E.2d 1268 (3d Dist. 2001).
32 Snow, 322 Ill. App. 3d at 953-56.
33 Id. at 957.
Thomas A. Else, J.D. practices in Oak Brook, Illinois and concentrates in the areas of Family Law, Bankruptcy and Civil Litigation. He received his B.A. from Elmhurst College in 1979, and his J.D. from DePaul University College of Law in 1982. He is also the Associate General Counsel to the DuPage County Bar Association.