Divorce Lawyers New York - Recent Family Law Decisons (17)
RECENT FAMILY LAW DECISIONS (17)
Finding
Review
A trial court’s finding that the recipient spouse in not living with another person under circumstances amounting to a de facto husband-wife relationship will not be reversed unless it is contrary to the manifest weight of the evidence.
Husband/Wife Relationship
The evidence established that petitioner had entered into a relationship which amounted to that of husband and wife and fell within the provisions of subsection (c).
Purpose
The termination of maintenance upon the recipient’s resident, continuing and conjugal cohabitation with another person was most likely added to subsection (b) of this section to end the inequities caused when a former spouse had in fact entered into husband-wife relationship, although not formalized legally, was still entitled to maintenance merely because Illinois does not recognize common law marriages.
The requirement that maintenance terminate upon the recipient’s residing with another person on a resident, continuing conjugal basis presumably was added to this Act to avoid the injustice of cases in which the payor spouse in unable to prove the marriage of the recipient spouse.
The requirement that maintenance terminate upon the recipient’s residing with another person on a resident, continuing conjugal basis presumably was added to this Act to avoid the injustice of cases in which the payor spouse is unable to prove the marriage of the recipient spouse.
Settlement Agreement
Basis for Termination
Where parties expressly provided in clear and unequivocal language for maintenance and for its termination upon the occurrence of either of two conditions, the death or the remarriage of the respondent, the execution of this agreement, voluntarily signed by both parties who were each represented by counsel, constituted a clear, unequivocal, and decisive act from which it may be inferred that petitioner waived conjugal cohabitation as a condition for the termination of maintenance.
The omission of conjugal cohabitation as a condition for termination in a maintenance agreement indicates that the parties did not intend to have this statutory condition apply.
Termination of Maintenance
The trial court erred in terminating maintenance from the date of the former husband’s petition, rather than the date his former wife began conjugal cohabitation with another man.
Cohabitation automatically terminates a maintenance obligation; thus, the payor spouse is not required to file a petition before a maintenance obligation terminates.
When termination of maintenance was sought based on cohabitation under subsection (c) the trial court appropriately considered various factors defining the relationship, such as (1) its length; (2) the amount of time spent together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together; the test the court employed was the totality of the circumstances.
