Cohabitation on a Resident Continuing Conjugal Basis: What is it, When Must it Occur in Order to Terminate a Party’s Obligation To Pay Maintenance, and As of What Date is the Obligation Terminated?
By David A. King
Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act ("IMDMA") provides that a party's "obligation to pay future maintenance is terminated … if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis," unless "otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court."1 The language of the statute indicates three elements that must be satisfied before a party's obligation to pay maintenance is terminated: a party must be receiving maintenance; the party receiving maintenance must cohabit with another on a resident, continuing conjugal basis; and the parties must not have an agreement approved by the court eliminating cohabitation as a basis for termination of maintenance. However, relying solely on the language of the statute itself would be a mistake.
Decisions of the Illinois appellate and supreme courts over the past twenty years have altered the application of this statute, creating potential pitfalls for the uninformed family law practitioner and the ill-advised client. The most problematic areas of interpretation consist of determining what constitutes "cohabitation on a resident, continuing conjugal basis;" when it must occur in order to terminate a party's obligation to pay maintenance; and as of what date the maintenance obligation terminates. The answers to these questions may have been clarified, or further complicated, by recent decisions of the second and third district appellate courts, In re Marriage of Gray2 and In re Marriage of Snow,3 respectively.
In Gray, the appellate court applied strict rules of statutory construction in holding that section 510(c) automatically terminates a party's maintenance obligation as of the date the maintenance recipient begins to cohabit with another on a resident, continuing conjugal basis; regardless of when, or if, a petition to terminate maintenance is filed. In Snow, the appellate court cited Gray when similarly holding that maintenance is terminated as of the time the conjugal cohabitation begins, not when the petition to terminate is filed. Since neither the Gray nor Snow court addressed whether the same strict rules of statutory construction should be applied to determining what constitutes conjugal cohabitation, or when it must occur to terminate a party's obligation to pay maintenance, it is uncertain whether these appellate decisions signal a change in how the courts will interpret the language of 510(c) as a whole, or are limited to determining the effective date of termination.
What Constitutes Cohabitation on a Resident, Continuing Conjugal Basis?
In light of the Gray and Snow courts' reliance on strict rules of statutory construction, and the Illinois Supreme Court's directive that rules of statutory construction "do not authorize the court to declare that the legislature did not mean what the plain language of the statute imports,"4 we will first look to the plain language of section 510(c) to determine what constitutes cohabitation on a resident, continuing conjugal basis. Black's Law Dictionary provides the following definitions: Cohabitation, "the fact or state of living together, especially as partners in life, usually with the suggestion of sexual relations;"5 Residence, "usually just means bodily presence as an inhabitant in a given place;"6 Conjugal, "of or relating to the married state, often with an implied emphasis on sexual relations between spouses;"7 and Conjugal Rights, "the rights and privileges arising from the marriage relationship, including the mutual rights of companionship, support, and sexual relations."8 Webster's Dictionary similarly defines "conjugal rights" as "the sexual rights or privileges implied by and involved in the marriage relationship: the right of sexual intercourse between husband and wife."9 Using these definitions to interpret the "plain language" of section 510(c), a maintenance recipient must physically reside with another in a husband-and-wife-like relationship, including the rights of companionship, support and sexual relations, before the payor spouse's maintenance obligation is terminated.
Illinois courts have consistently held that to justify termination of maintenance payments on the basis of residential, conjugal cohabitation, the maintenance recipient must reside with another, although not exclusively,10 and be involved in de facto husband and wife relationship with that person.11 In determining whether or not a de facto husband and wife relationship exists, the courts look to the "totality of the circumstances,"12 including, but not limited to, the following: duration of the relationship; extent of sexual conduct, duration of residency; whether the subject residence is jointly owned or leased; whether household expenses are shared; whether joint bank accounts are maintained; whether joint credit accounts are maintained; whether funds have been commingled; whether loans have been made from one to the other; whether loans have been co-signed; whether automobiles are jointly owned or shared; whether the cohabitation effects the maintenance recipient's need for support; whether they socialize together; whether they socialize with each others friends; whether they share meals; whether they share household chores; whether they exchange birthday/holiday gifts; whether they send out joint holiday cards and/or letters; whether they spend holidays together; whether they take vacations together; whether they name each other as beneficiaries on wills, life insurance policies, employee benefit plans and/or accounts; whether they provide the other with a healthcare power of attorney; and whether they discuss retirement or marriage plans. This is certainly not an exhaustive list of facts that will be considered by the courts, but illustrates the type of facts trial courts have relied on in the past. The trial court's findings on such underlying facts are entitled to great deference,13 and a court of review will not reverse a trial court's finding concerning the existence of a de facto husband and wife relationship unless that finding is contrary to the manifest weight of the evidence.14
Although Illinois case law does not outline a specific set of circumstances that will constitute a de facto husband and wife relationship, it does make clear that no single fact is controlling, or determinative. To-wit, while sexual conduct is to be considered in determining whether a conjugal relationship exists, individuals can be cohabiting on a conjugal basis without engaging in sexual conduct;15 while the financial implications of the relationship are frequently found to be the single most important factor, a demonstrated need for support is not controlling and, in itself, does not defeat a petition to terminate maintenance;16 and, although the maintenance recipient must reside with another, the residency does not need to be exclusive.17
Given the dictionary definitions of cohabitation, conjugal and conjugal rights set forth above, it appears that the plain language of section 510(c) and Illinois case law differ on whether or not sexual conduct is a required element in proving cohabitation on a "continuing conjugal basis." The argument raised in Sappington, and cited in Weisbruch, that the difficulty in proving sexual relations serves as a basis to omit it as a required element of cohabitation on a conjugal basis, seems to ignore the plain language of the statute, especially considering the ramifications that a finding of continuing conjugal cohabitation has on a maintenance recipient.
When Must Cohabitation on a Resident, Continuing Conjugal Basis Occur in Order to Terminate a Party's Obligation To Pay Maintenance?
If a party cohabits on a resident, continuing conjugal basis prior to receiving maintenance, is the opposing party's obligation to pay maintenance terminated? Based on existing Illinois case law, specifically In Re Marriage of Klein18 and In Re Marriage of Toole,19 the answer is yes. However, the appellate courts have not addressed this issue since Gray. If the same emphasis on rules of statutory construction is applied to determine whether a party's conjugal cohabitation prior to receiving maintenance terminates the opposing party's obligation to pay maintenance, then the decisions in both Klein and Toole may be overturned.
Section 510(c) states that the "obligation to pay future maintenance is terminated… if the party receiving maintenance cohabits with another person …" [emphasis added]. Rules of statutory construction provide that the courts must give a statute effect as written where the language is clear and unambiguous, without reading into it exceptions, limitations or conditions that the legislature did not express.20 Pursuant to the clear language of section 510(c), only conjugal cohabitation by a party "receiving maintenance" terminates the payor spouse's obligation to pay maintenance. This interpretation is supported by the logical conclusion that an obligation cannot be terminated if it does not yet exist. In Klein, the fourth district appellate court held "if a party who seeks maintenance cohabits before maintenance is awarded, the award should be denied pursuant to section 510(c)." Three years later, in Toole, the second district appellate court cited Klein in support of its holding that "maintenance should not be awarded where party looking to receive maintenance is either cohabiting, or has cohabited, on a conjugal basis with another party since the inception of the marriage, absent a subsequent reconciliation."21 In both Klein and Toole, the courts analogize the termination of maintenance upon cohabitation to the termination of maintenance upon the death or remarriage of a party. In support of the analogy to the death of a party, the court states, "where a party died before maintenance was awarded, the granting of maintenance has been determined to be error."22 This analogy can be distinguished on two bases. First, the language of section 510(c) relating to termination upon the death of a party is different from the language relating to termination due to the conjugal cohabitation of a party. Specifically, the language relative to termination upon the death of a party does not contain the qualifying phrase, "if the party receiving maintenance …" Second, conjugal cohabitation is not a permanent state, and may end prior to the commencement of a party's right to receive maintenance. In contrast, death is a permanent state, and will not end prior to the commencement of a party's right to receive maintenance. The analogy to a party's remarriage can also be distinguished. While it is easy to conceive of situations where a party's cohabitation on a conjugal basis ends prior to receiving an award of maintenance, the sequence of events that would have to occur for a party to remarry, and then divorce or otherwise invalidate that marriage, all prior to receiving an award of maintenance in the initial dissolution of marriage proceedings, would be unique at best. In light of the second district appellate court's reliance on statutory construction in Gray, as well as the statutory construction arguments raised by the dissent in Toole, the holdings in Klein and Toole that cohabitation on a conjugal basis before or after maintenance is awarded terminates a party's maintenance obligation, may be overturned when the issue is next presented.
What is the Effective Date of Termination?
Section 510(c) states that the obligation to pay future maintenance is terminated by the resident, continuing conjugal cohabitation of the recipient with another person. When applying this provision, Illinois appellate courts historically held that termination of maintenance due to cohabitation was effective no sooner than the date of notice to the maintenance recipient that a petition to terminate had been filed.23 However, as set forth above, the courts in Gray and Snow concluded that cohabitation on a resident, continuing conjugal basis by a maintenance recipient automatically terminates the obligor's maintenance obligation as of the date the residential, conjugal cohabitation commences, and no requirement exists that the obligor must first file a petition to terminate.
In Gray, a judgment of dissolution of marriage was entered in 1988 requiring John Gray to pay permanent maintenance to Patricia Gray. Ten years later, in February, 1998, Patricia filed a petition to collect past-due maintenance payments, alleging that John had not made full monthly payments since March, 1995, and owed her $19,310.50 in arrearages. On June 22, 1998, John filed a petition to terminate maintenance alleging that Patricia cohabited with another in violation of section 510(c). The trial court found that Patricia cohabited with a man named Evans on a resident, continuing conjugal basis, from March, 1991 until Evans' death in November, 1991, and therefore terminated John's obligation to pay maintenance to Patricia as of June 22, 1998, the date John filed his petition to terminate maintenance. The trial court then entered a judgment against John for maintenance arrearages of $22,986.86. On appeal, it was not disputed that Patricia cohabited with Evans on a resident, continuing conjugal basis from March, 1991, until November, 1991 when Evans died. The sole issue was whether John's maintenance obligation terminated on the date Patricia's conjugal cohabitation commenced, or on the date John filed his petition to terminate. The Gray court distinguished the requirements of section 510(a) relating to modification of maintenance from the requirements of section 510(c) relating to termination of maintenance, finding that the legislature "intended to establish a distinct standard between terminating maintenance and modifying maintenance."24 The Gray court further noted that "contrary to section 510(c), section 510(a) specifically requires that a motion be filed and that such payments may be modified only after due notice and upon a showing of a substantial change in circumstances."25 The Snow court followed the reasoning of the Gray court on this issue. Given the plain language of section 510(c), and the consistent holdings by both the second and third district appellate courts in Gray and Snow, it seems the other appellate districts will follow suit when presented with this issue.
To justify termination of a party's maintenance obligation on the basis that a maintenance recipient cohabited with another on a resident, continuing conjugal basis, the maintenance recipient must reside with, and be involved in a de facto husband and wife relationship with, another individual. Whether a given set of facts satisfies this requirement is determined by the trial court, and principles of equity play a significant role. The decisions of the Illinois supreme and appellate courts show that every fact is relevant, from the frequency of sexual relations to who does the laundry. And despite the apparent conflict between the plain language of section 510(c) and Illinois case law on whether a finding of conjugal cohabitation requires proof of sexual conduct, given the absolute clarity of the Illinois supreme court in Sappington that it does not, and the fact that the Sappington court's holding has stood for over fifteen years, it is safe to say that neither sexual conduct, or any other single fact, is determinative in establishing whether or not a "de facto husband and wife relationship" exists.
It is clear that residential, conjugal cohabitation by a maintenance recipient automatically terminates maintenance. It is not clear whether residential, conjugal cohabitation that ends prior to receiving maintenance terminates the opposing party's obligation to pay maintenance. Since section 510(c) refers specifically to a party "receiving maintenance," and the two most recent decisions interpreting section 510(c) (Snow and Gray), as well as the dissent in Toole, focus on the rules of statutory construction, a challenge to the law of Klein and Toole stands a decent chance of prevailing.
Although there is no clear test to determine what constitutes conjugal cohabitation or when it must occur in order to terminate a party's obligation to pay maintenance, it is clear that once commenced by a maintenance recipient, the maintenance obligation is automatically terminated, regardless of when, or if, a petition to terminate is filed. Since neither the Gray or Snow courts addressed when residential, conjugal cohabitation commences, the timing of every fact underlying such a claim now takes on greater significance, making what was already a fact intensive issue, even more so; and making cases that may not have been worthwhile pursuing since the remaining future maintenance obligation was relatively low, worth a second look.
1 750 ILCS 5/510(c) 2 In re Marriage of Gray, 247 Ill.Dec. 169, 731 N.E.2d. 942 (2 Dist. 2000) 3 In re Marriage of Snow, 255 Ill.Dec. 883, 750 N.E.2d 1268 (3 Dist. 2001) 4 Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc. (1994) 196 Ill.Dec. 655, 661, 630 N.E.2d 820 5 Black's Law Dictionary 254 (7th ed. 1999). 6 Id. at 1310. 7 Id. at 297. 8 Id. 9 Webster's Third New International Dictionary 480 (1971). 10 In Re the Marriage of Herrin, 199 Ill.Dec. 814, 634 N.E.2d 1168 (4 Dist. 1994). 11 Snow. 255 Ill.Dec. at 885. See also In re Marriage of Sappington, 478 N.E.2d 376, 106 Ill.2d 456 (Ill. 1985); In re Marriage of Lemming, 169 Ill.Dec. 108, 590 N.E.2d 1027 (5 Dist. 1992); In re Marriage of Weisbruch, 237 Ill.Dec. 809, 710 N.E.2d. 439 (2 Dist. 1999). 12 Herrin, 199 Ill.Dec. at 817. 13 Snow, 255 Ill.Dec. at 885. 14 Id; In Re Marriage of Caradonna,143 Ill.Dec. 175, 553 N.E.2d 1161(2 Dist. 1990). 15 Sappington, 106 Ill.2d at 466;Weisbruch, 237 Ill.Dec. at 813. 16 In re Marriage of Frasco, 202 Ill.Dec.787, 638 N.E.2d 655 (4 Dist. 1994) 17 See e.g. Herrin, 199 Ill.Dec. 814. 18 In re the Marriage of Klein, 173 Ill.Dec. 335, 596 N.E.2d 1214 (4 Dist. 1992) 19 In re the Marriage of Toole, 210 Ill.Dec. 551, 653 N.E.2d 456 (2 Dist. 1995) 20 In re Marriage of Gray; Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc. 21 Tool, 210 Ill.Dec. at 556.. 22 Id. (citing Stacke v. Bates 200 Ill.App.3d 85, 91, 146 Ill.Dec. 118). 23 Frasco, 202 Ill.Dec. at 793. 24 Gray, at 247 Ill.Dec. at 172. 25 Id.
David A. King is one of the resident partners with the law firm of Schiller DuCanto & Fleck, Wheaton, Illinois. His practice concentrates in family law and family law related litigation. He received a B.S. in accounting from University of Illinois in 1988 and his law degree from DePaul University College of Law in 1993.