It is a bleak reality that an increasing number of marriages end in divorce. According to U.S. Census Bureau data, 2.4 million Americans divorced in 2012, continuing a three-year growth trend that experts attribute to an improving economy. That trend highlights difficult issues couples face when they decide to divorce, such as who gets what and who is going to raise the kids. Now that more Illinoisans have the right to marry, more Illinoisans also have the right to divorce, which only exacerbates these issues.
Many understand that divorce can be messy, especially when dividing marital property (property acquired during the marriage) and determining which property is non-marital (property that exclusively belongs to one spouse or the other). If the parties cannot come to their own agreement, then a court will decide. The same is true for establishing maintenance, or alimony, payments. Unlike with child support, Illinois law does not have a standard formula for determining what an appropriate maintenance award is. Instead, the court considers various factors, including, but not limited to:
- Each party’s income and the division of both marital and non-marital property;
- Each party’s present and future earning capacity;
- The duration of the marriage;
- The standard of living that the parties established during the marriage;
- Tax consequences of property division; and
- How much the party seeking maintenance contributed to his or her partner’s education, training, and/or career.
How Cohabitation Affects Alimony Arrangements
The Illinois Marriage and Dissolution of Marriage Act recognizes three types of maintenance: permanent, temporary, and rehabilitative (until the former spouse can get back on his or her feet). It is important to understand that “permanent” does not necessarily mean forever, though. Maintenance payments are discontinued upon death, remarriage, or cohabitation. However, the paying party can choose to provide for the receiving party in his or her will, and the parties can allow for remarriage or cohabitation in a maintenance agreement.
The third contingency – cohabitation – can add difficulty if not addressed preemptively. State law provides that a person loses the right to receive maintenance payments if he or she “cohabits with another person on a resident, continuing conjugal basis,” unless the parties have stipulated otherwise. Unfortunately, the Marriage Act does not specify what cohabiting on a “resident, continuing conjugal basis” means. Therefore, courts must address this question on a case-by-case basis. The burden of proof lies with the party seeking to terminate maintenance payments. Courts consider:
- The length of the alleged cohabitation;
- How much time the allegedly cohabiting couple spends together, including vacations and holidays;
- Whether their personal affairs are interrelated (for example, if they have a joint banking account);
- Frequency of sexual conduct; and
- The division of household chores.
Because this is a gray area of state law, it is wise to address the issue preemptively. Our skilled Illinois family law attorneys at the Law Offices of Thomas Glasgow, Ltd. have experience handling divorce and division of property. Contact us today for a consultation. We represent families throughout Chicago and the surrounding counties who are going through the divorce process or seeking a change to a maintenance award.