Jenette M. Schwemler, PC

Termination of Maintenance is Not All About Sex

Filed in Divorce, on March 24, 2022

Many clients ask me if they can start dating while still receiving maintenance from their former spouse. The answer is yes, as long as you don’t “cohabitate” with your significant other “on a resident, continuing, conjugal basis.” But what does “cohabitate” really mean? The statute does not provide a definition. What does “resident, continuing, conjugal basis” mean? Again, the statute does not define what this phrase means. For all of these terms, we look to case law for the meaning. The good news is that if you take your dating relationship to a sexual level (for purposes of this article, I refer to this as an intimate dating relationship), your maintenance will not automatically be terminated.

The court will look to whether a de facto marriage relationship exists. Usually, it starts with an analysis of six factors, which are: 1) the length of the relationship, 2) the amount of time the couple spends together, 3) the types of activities the couple engages in, 4) the interrelation of their personal affairs (sharing expenses is a major red flag there is a de facto marriage relationship), 5) whether the couple vacations together and 6) whether the couple spends holidays together. But the court will not simply check off boxes on this list of de facto marriage factors. It will look to the totality of circumstances in determining whether the relationship acts practically and economically as a marriage. It will focus on whether there is a deeper level of commitment or an intended permanence in the relationship. It will look to whether the couple looks to one another for support. Support can be defined as love and/or money.

Courts have joined the 21st century in realizing that not every intimate dating relationship is a de facto marriage. In fact, if we examine the six factors, in many cases, these factors are present in an intimate dating relationship. Thus, an intimate dating relationship alone will not be considered a de facto marriage. There must be other factors present in addition to intimacy. Indeed, one Illinois case held that where the male partner was incapable of intimacy (he was impotent), there still could be a de facto marriage if other factors were present. But, make no mistake, intimacy IS an important factor a court will consider, among others.

So what is the bottom line? I can give a list of things not to do to keep your maintenance while dating, but THIS SHOULD NOT BE INTERPRETED AS LEGAL ADVICE. Here it is:

Don’t put your significant other’s name on your bank account
Don’t put your name on your significant other’s bank account
Don’t name your significant other as a beneficiary to your financial accounts
Don’t be the beneficiary of your significant other’s financial accounts
Don’t share expenses – make a paper trail showing each of you pays your own
Don’t think you can hide sharing expenses by paying with cash
Don’t live together (if you do, don’t share expenses – make a paper trail)
Don’t give your partner absolute and/or unsupervised access to your home
Don’t own joint property together
Don’t include your significant other in your estate plan
Don’t be included in your significant other’s estate plan
Don’t post as being a couple on social media
Don’t bring your significant other to your doctor’s appointments
Don’t go to your significant other’s doctor’s appointments
Don’t bring your significant other to your children’s doctor’s appointments
Don’t go to your significant other’s children’s doctor’s appointments
Don’t bring your significant other to your children’s parent-teacher conferences
Don’t have your significant other help your children with homework
Don’t go on vacations/travel together (if you do, keep your expenses separate)
Don’t spend EVERY holiday together
Don’t send out joint holiday cards
Don’t buy your significant other expensive gifts
Don’t accept expensive gifts from your significant other
Don’t buy your significant other’s children expensive gifts
Don’t accept expensive gifts for your children that came from your significant other
Don’t receive mail at your residence for your significant other
Don’t have your mail sent to your significant other’s residence
Don’t cosign on a loan with your significant other
Don’t give your significant other a loan
Don’t receive a loan from your significant other
Don’t have your significant other call you or your children his or her family
Don’t do your significant other’s (or his or her children’s) laundry on a regular basis
Don’t share meals together on a regular basis
Don’t share a phone plan together (even if it is cheaper)
Don’t have long phone conversations with your significant other
Don’t send personal text messages to your significant other
Don’t have your significant other send personal text messages to you

This is not a list of things you can’t do forever. Just don’t do them while you are receiving maintenance. Although this is a pretty comprehensive list, it is not exhaustive. The law in this area is ever changing. Just remember, if it looks like a duck, swims like a duck, and quacks like a duck, then it’s probably a duck.

Leave a Reply

Your email address will not be published.

Contact

Law Office of Jenette M. Schwemler, PC
27764 Volo Village Road, Suite H
Lakemoor, IL 60073 MAP

Note: “House calls” and weekend appointments for initial consultations are available for a fee.
jenette@jms-attorney.com

    (815) 245-4665