Co-habitation eliminating maintenance payments?

[Ender222]

What is the name of your state? Illinois

My final divorce contract states that if my ex-wife co-habitats with someone that it is grounds for me to stop paying maintenance. My ex-wife thinks this is negotiable after the fact. Although I realize everything is negotiable, would a judge typically rule in her favor? Her financial situation is very strong from the original splitting of the assets.

As a side note, she also agreed in the original agreement that I only had to pay her until I turned 60, if I decided to retire. If I kept working, I would keep paying her as long as I worked.

 

[HighwayMan]

If that's what it says in your divorce agreement then how does that make it negotiable? It seems pretty cut and dried.

I have the feeling that you're leaving something out.

 

[stealth2]

I suspect the exact language is important. Especially as Op and ex seem to be interpreting differently.

 

[Whoops2u]

In re Marriage of Arvin, 540 NE 2d 919 - Ill: Appellate Court, 2nd Dist. 1989

If the language is not there:
"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." (Ill. Rev. Stat. 1987, ch. 40, par. 510(b).)

Describing some aspect of what cohabitation means in general:
The fact that Judith lived with another man would not automatically justify termination of maintenance. (In re Marriage of Reeder (1986), 145 Ill. App.3d 1013, 1018.) The rationale behind statutory termination of maintenance when the recipient spouse cohabits with another on a continuing, resident, conjugal basis is that it addresses the inequity created when that spouse becomes involved in a husband-wife relationship but does not legally formalize it so that he or she can continue receiving maintenance. (Reeder, 145 Ill. App.3d at 1017.) Termination of maintenance on this basis therefore requires a showing that the recipient spouse is involved in a de facto husband-wife relationship. 145 Ill. App.3d at 1017; In re Marriage of Clark (1983), 111 Ill. App.3d 960, 961; In re Marriage of Bramson(1980), 83 Ill. App.3d 657, 662.

• 5 Robert failed to show that Judith and George Hamilton were involved in a de facto husband-wife relationship. In Bramson, the court stated as follows:

"Moreover, the legislative intent does not appear to be an attempt to control public morals. * * * Rather, an important consideration, divorced from the morality of conduct, is whether the cohabitation has materially affected the recipient spouse's need for support because she either received support from her co-resident or used maintenance monies to support him." (83 Ill. App.3d at 663.)​

Our supreme court has quoted the above language with approval. See In re Marriage of Sappington (1985), 106 Ill.2d 456, 467-68.

 

[HRZ]

Other posts here and elsewhere suggest one can have an darn frequent relationship and still tiptoe around being in a defacto marriage relationship ....OP be sure you have lots of backup to the language in your order or law especially as to economic support and or maintaining not two residences but just one .

 

[Ender222]

Thanks for the response. The exact language is as follows:

That is sum shall terminate upon the first of the following events to occur:
A. Death of Husband
B. Death of Wife
C. Wife's remarriage
D. Wife's cohabitation with another individual on a resident, continuing conjugal basis.
E. Maintenance shall continue until Husband's age 60 or full retirement from employment, whichever is last to occur.

I'm a little worried about Whoops2u post (materially affected the recipient spouse's need for support )...the guy my ex is seeing right now (and may move in with), doesn't make much money. If they move in together and he doesn't contribute much financially to the relationship, is that a basis for my ex to still get maintenance from me. Even though she banked $1.5 million when we originally settled.

 

[LdiJ]

Thanks for the response. The exact language is as follows:

That is sum shall terminate upon the first of the following events to occur:
A. Death of Husband
B. Death of Wife
C. Wife's remarriage
D. Wife's cohabitation with another individual on a resident, continuing conjugal basis.
E. Maintenance shall continue until Husband's age 60 or full retirement from employment, whichever is last to occur.

I'm a little worried about Whoops2u post (materially affected the recipient spouse's need for support )...the guy my ex is seeing right now (and may move in with), doesn't make much money. If they move in together and he doesn't contribute much financially to the relationship, is that a basis for my ex to still get maintenance from me. Even though she banked $1.5 million when we originally settled.

Yes, if he is not really contributing to her support because he doesn't make much money, then that would be a basis for your ex to still get maintenance from you.

 

[HRZ]

That is not the language cited " resident, continuing conjugal basis "
..and the cases cited address support either way...from new partner or from maintenance to new partner .

OP based on some other posts here where poster had problems proving a resident continuing conjugal basis or similar language I would suggest you lay low and silent in the short term in hopes that her relationship will develop into something that is a bit easier to prove from your point of view. .

 

[Ender222]

Thanks HRZ...I am definitely laying low. They are talking about moving in together. When my Ex told my daughter this, my daughter asked her if I would still have to pay maintenance. My Ex told my daughter that we'd have to go back to court and negotiate what I would still have to pay her.

The reason for my question in this forum was due to what seemed like pretty clear language....but I'm seeing from the posts that there is no such thing as clear

 

[PayrollHRGuy]

Make stopping talking about it with your daughter part of laying low.

 

[stealth2]

Why does your daughter even know about your paying maintenance?

 

[HRZ]

And I agree with above...keep daughter out of all loops and discussions ..this is none of her business and it's unwise to make her an information source as well.

 

[Ender222]

Thanks for the alimony advice...keep your parental advice to yourself. My daughter is 28. I've been divorced 2 years.

 

[LdiJ]

Thanks for the alimony advice...keep your parental advice to yourself. My daughter is 28. I've been divorced 2 years.

You come to an internet forum that is staffed by volunteers and you can expect to get some parenting advice and practical advice mixed in with the legal advice. Being snippy to the volunteers about that is not in your best interest if you want to continue to get legal advice.

 

[HRZ]

The practical advice remains stay low and inactive for now ....if your adversary in this equation senses that you are seeking to get maintenance cut off due to a new residential,continuing conjugical relationship ..other posts here and elsewhere support that she can early on intentionally muddy the waters so as to inhibit any such conclusion