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Termination of Maintenance-The Cohabitation Rule

In Re Marriage of Churchill, 2022 Il App. (3d) 210026

The end of a marriage does not necessarily mean the parties’ finances are completely separated. Frequently, one spouse will be required to make support payments to the other spouse in the form of child support and/or maintenance. These support obligations can span long periods of time and can account for a significant portion of the paying spouse’s net income. Child support payments typically terminate when the children are emancipated, while maintenance payments can terminate for a number of reasons. Amongst other reasons, maintenance payments can be terminated when the ex-spouse receiving the maintenance payments (a) remarries, or (b) cohabitates with another person. The Third District’s decision in Churchill addressed the issue of cohabitation.

A.    The Underlying Facts

The parties were married in March of 1999 and had two children during the marriage. Amy Churchill filed a petition for dissolution of marriage in September of 2016. In February of 2017, John Churchill was ordered to pay Amy per month $5,000 in temporary maintenance and $6,040 in child support.

1)      John’s First Petition to Terminate Maintenance

            About eight months after John was ordered to pay temporary maintenance, John filed a motion to terminate the maintenance payments on the ground that Amy was cohabitating with another man (Jared Fogel). John had hired a private detective, and supported his motion with evidence that Jared had stayed overnight at Amy’s residence approximately seven times between February and April 2017 (about a three-month period of time). He also presented evidence that Amy and Jared went on dates, traveled to Las Vegas, traveled together to Macomb, Illinois for family events, and that Jared attended their son’s sporting events. Further, Jared had packages shipped directly to Amy’s residence addressed to “Amy Fogel.”

In addition, Amy and Jared purchased rings for each other. The ring Amy gave to Jared was “described as a wedding ring,” but there was no evidence presented that Amy and Jared were actually married. However, Amy and Jared were both authorized users “on each other’s account” at Rogers and Holland.

Jared operated a business that required him to move from one location to another. Jared worked in Morton, Illinois from November of 2016 to April of 2017. In April of 2017, Jared’s business moved to Canton, Illinois and then to Iowa in June of 2017. Based on this evidence, the Circuit Court held that John had not proven that Amy and Jared “cohabitated.” The Third Circuit affirmed the Circuit Court’s decision.

2)     John’s Second Petition to Terminate Maintenance

            In January of 2020, John filed a second petition (“Second Petition”) to terminate Amy’s maintenance payments. The evidence presented at the hearing on John’s Second Petition showed a continuation of Amy and Jared’s relationship. Given the nature of Jared’s work, Amy and Jared maintained a long-distance relationship. However, while the relationship was, in part, long-distance, it was a close relationship, nonetheless. The evidence showed that Amy and Jared spoke over the phone daily when Jared was out of state. Amy testified that Jared would spend weekends in Morton, if his business was working on a job close to that area. Jared would return to Morton Illinois when his out-of-state jobs were completed, even though his home was technically in Texas. Further, Jared had 24-hour access to Amy’s home “through the garage door keypad.”

Evidence also showed that Jared and Amy would go on vacations together and Jared attended events involving Amy’s children. For example, Jared “traveled with Amy and the family to Missouri for Grant’s military send-off and traveled to San Diego for Grant’s military graduation.” They also spent various holidays together.

With respect to the rings Amy and Jared bought for each other, Amy testified that she “wears [the ring] a lot and then there’s a lot of times that she doesn’t wear it.” Jared testified that he did not wear the ring much, but other evidence showed him wearing the ring on a number of occasions.

The Circuit Court denied John’s Second Petition to terminate the maintenance. The Third Circuit then reversed the Circuit Court’s decision and directed the Circuit Court to grant John’s Second Petition.

B.      The Court’s Analysis

The Third District started its analysis by identifying the six factors court’s should evaluate when deciding whether “cohabitation” has occurred: “(1) the length of the relationship, (2) the amount of time spent together, (3) the nature of activities engaged in, (4) the interrelation of personal affairs (including finances), (5) whether they vacation together, and (6) whether they spend holidays together.” The court did not state how much weight a court should give to each factor.

In regard to the first factor, Amy and Jared had remained in a monogamous relationship for a number of years. Amy testified that she loved Jared and that she “did not plan to end her relationship with him.” In regard to the second factor, the evidence showed that Amy and Jared spent a considerable amount of time together. When Jared “finished his out-of-state work, he usually returned to Illinois and spent time with Amy.” Amy “traveled to visit Jared at his out-of-state work locations, and Amy and Jared would keep in touch by phone when Jared was out-of-state. Finally, “Jared spent the majority of his time with Amy when his business did not require him to work out-of-state.”

With respect to the third factor, the Third District held that ample evidence showed that Jared and Amy engaged in activities that gave the “appearance of a de facto husband-and-wife relationship.” Jared and Amy had a “monogamous sexual relationship,” they attended many activities together, they traveled together on vacations, Jared was involved in the lives of Amy’s children, and Amy cared for Jared’s cat when he was out-of-town.

In regard to the fourth factor, the Third District pointed to the evidence that Amy and Jared had a shared account at a jewelry store, Amy listed Jared’s cat under Amy’s “account at the veterinarian,” and had “Jared’s vehicle invoices appear on Amy’s account.” From this evidence the Third District stated that “Amy had interrelated much of her personal affairs with Jared’s.”

With respect to the fifth and sixth factors, the Third District pointed to the various vacations and family trips Amy and Jared took together and the holidays they spent together.

The Third District could have ended its analysis here, but it went on to criticize the failure of prior courts hearing John’s petitions to give proper weight to the exchange of rings by Amy and Jared. The Third District stated that the “exchange of rings is a significant fact to support a finding of a de facto marriage.” The Third District then concluded that the “vast majority of the evidence establishes that Amy and Jared cohabited on a resident, continuing basis.”

Closing Thoughts

The decision in Churchill exemplifies the importance of procuring a wide range of facts when requesting a termination of maintenance on the ground that the ex-spouse receiving the maintenance is cohabitating with another person. The procedural history in Churchill also shows that courts will frequently demand a high level of proof that “cohabitation” is occurring. A court is not likely to terminate an ex-spouse’s maintenance simply because the ex-spouse is in a relationship with a new person.

The decision also displays the pitfalls of filing a petition to terminate maintenance too early. John spent considerable time and money attempting to terminate Amy’s maintenance after only eight months had passed since the maintenance order was entered. While the Third District was critical as to how the courts handled John’s first petition, sometimes waiting a few more months to gather additional evidence is time well spent.

The matters addressed in this case show how important it can be to work with a legal representative who is well-versed in family law procedures in your state and county. If you are dealing with a complex divorce or spousal maintenance issue, our Chicago family law attorney is available to discuss your case. Please contact our office to learn more.

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